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Did Netanyahu's Lawyer Just Invalidate the Prime Minister's Defense in the Gifts Affair?

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Prime Minister Benjamin Netanyahu at the Knesset in Jerusalem, November 12, 2017.
Prime Minister Benjamin Netanyahu at the Knesset in Jerusalem, November 12, 2017.Credit: Olivier Fitoussi

Prime Minister Benjamin Netanyahu’s long-standing lawyer Jacob Weinroth provided investigative television journalist Ilana Dayan with some voyeuristic tidbits regarding relations between Netanyahu and his wife Sara last week.

Conspiracy theorists tried to imagine what the sophisticated attorney was trying to achieve. The most popular theory is that Weinroth was trying to consolidate the defense position that it’s permissible to accept gifts from friends, backing this up with his own admission that Netanyahu occasionally asked him what was permitted and what was forbidden. Could it be this is the defense strategy adopted by Netanyahu in the case of the gifts he allegedly received from tycoons (dubbed “Case 1000” by the Israel Police)? If so, he’s in pretty bad shape.

This line of defense is termed “reliance on professional advice.” It’s a defense tactic that claims a defendant acted unlawfully because he relied on advice by an expert lawyer who approved his conduct. If this is indeed Netanyahu’s strategy, Weinroth will be summoned for questioning over the advice he gave.

Weinroth is well versed in the law, and therefore knows this line of defense is almost irrelevant in this particular case. In fact, some of Weinroth’s own words in his interview with the “Uvda” (“Fact”) host last week eroded the chances of this line of defense having any success.

The “reliance” defense was discussed in a Supreme Court ruling concerning two major cases dealing with business decisions by senior managers in violation of antitrust laws (see the State of Israel vs Tnuva, written by Justice Dorit Beinisch; and Tager Ltd vs the State of Israel, written by Justice Dvora Berliner).

These two rulings examined the issue of whether a person can rely on professional advice, and under what circumstances, with regard to the legality of a particular action when that person is accused of a violation resulting from that action.

Lawyer Jacob Weinroth, center, in Tel Aviv District Court, February 2016.Credit: Ofer Vaknin

Beinisch wrote that this defense requires that the person seeking the advice present his counsel with all the facts; that the counsel be an expert in that field; and, primarily, that the person seeking advice must have made every effort to determine the legality of his actions – such as by turning to any relevant authorities, if such authorities exist.

The justice emphasized that where there is such an authority, the person has to explain why he approached a private lawyer instead of the relevant authority.

Berliner added that the person seeking the advice must present his lawyer with all the information in good faith, pointing to problematic information if any exists, and that concealing important information that could affect said advice would completely disqualify the legal advice given.

Another detail was that the whole process needs to be conducted in writing and should deal with concrete questions.

The Supreme Court is divided over the question of whether turning to a private lawyer for advice is legitimate when there is another authoritative source of advice.

Beinisch believed it was not legitimate, while Berliner was less firm in her opposition. However, both believed you cannot accept a general opinion permitting a certain action – in this case, accepting gifts from friends – but that a concrete opinion must be obtained in writing in each case, while presenting any circumstances that could make the issue problematic.

Berliner went further, saying a situation in which a lawyer gives a general guiding principle about the legitimacy of a particular type of action is one that would be difficult to accept as a valid defense.

Weinroth told Dayan and her “Uvda” viewers about a verbal consultation he had with Netanyahu. This already erodes the “reliance” defense route. Did Netanyahu seek legitimacy for each gift in a concrete manner? Did he provide details about the gift-giving friend’s interests in each case and on each occasion in which a shipment of pink champagne and cigars was allegedly requisitioned?

If the prime minister is relying on Weinroth’s advice without having a written opinion for each case – and seemingly he doesn’t – the police will have to gather evidence from the lawyer.

The fact the person seeking advice in the gifts affair is the prime minister carries some significance. According to Beinisch, “The more professionally senior the person seeking counsel is, and the more experienced he is – the more proficient he is expected to be in his area regarding rules relating to his affairs and problematic issues associated with them.” Thus, “blind reliance on the advice of his counsel will be less likely.”

Beinisch stressed that “the less complex the issue and the closer the conduct being examined is to the nucleus of the violation under discussion, the less likely the reliance on a lawyer’s advice will be for legitimizing such actions.”

In addition to the weakness of reliance as a defense, its very use here is particularly galling. Such a defense is reserved for prime ministers, cabinet ministers or senior managers. They can afford to receive concrete advice from experts and expensive lawyers like Weinroth.

A junior government official – who is no less exposed than a prime minister to the risks of being prosecuted for accepting bribes or for breach of trust – would be only too happy to receive gifts from friends. Such an official would have to make do with approval or denial by the legal counsel of the ministry he works for.

Therefore, Netanyahu must explain why he didn’t turn to the legal counsel at the Prime Minister’s Office. Given his position and the simplicity of the question, there is growing concern that his approach to Weinroth was designed to ensure that he received the desired response.

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