Is BAE's Monitor Independent?

As has been widely reported (see here and here among other places) David Gold has been appointed to be BAE's corporate monitor.

Gold (here) is a partner at Herbert Smith LLP, a leading U.K. based law firm, a firm Gold has been associated with for 37 years and will continue to be associated with until his retirement on April 30, 2011.

BAE is a client of Herbert Smith, as the firm candidly acknowledged in this release announcing Gold's appointment.

In the release, Herbert Smith states:

"This appointment is a mark of some distinction not only for David, reflecting as it does his international standing as one of the City's leading lawyers, but also for Herbert Smith."

Herbert Smith should have plenty of institutional knowledge as to many of the facts prompting the need for BAE's monitor in the first place.

Why?

Because Herbert Smith previously represented Saudi Prince Bandar - the person at the epicenter of BAE's alleged Saudi bribery scheme - the same bribery scheme that makes up the bulk of the DOJ's bribery, yet no bribery allegations against BAE (see here).

A June 8, 2007 article in The Guardian (London) details how "Prince Bandar released a statement through his London solicitors Herbert Smith" the same day an article appeared in the Guardian titled "BAE accused of secretly paying £1 billion to Saudi Prince".

On June 9, 2007, The Guardian detailed how "lawyers for Prince Bandar, the Saudi royal who received £1bn from BAE, accepted last night that he had spent $17m (£8.6m) on refurbishing one of his palaces, using cash from the US accounts concerned." The article states, "[b]ut his lawyers, Herbert Smith, said that as the palace in Riyadh was an official residence, there was nothing illegal or untoward spending money out of a Saudi official defence ministry account held at Riggs Banks in Washington DC."

In a June 13, 2007 article, The Guardian further notes how "the multi-milllionaire prince has hired for his defence the city lawyers Herbert Smith."

So it turns out that BAE's monitor is a lawyer who has been with Herbert Smith for 3 years - and will continue to be with Herbert Smith until his retirement - the same firm that represents BAE and the same firm that represented Saudi Prince Bandar the unnamed, yet widely reported, recipient of certain of BAE's payments as set forth in the DOJ's bribery, yet no bribery criminal information (see here).

Why does this matter?

Because the DOJ-BAE plea agreement (see here - Appendix C) requires an "independent corporate monitor." The plea agreement states that this individual shall have "sufficient independence from [BAE] to ensure effective and impartial performance of the Monitor's duties ..."

Not only did the DOJ approve of David Gold as BAE's monitor, but so too did the U.K. government - at least that is what the plea agreement requires.

So, what do you think? Is BAE's monitor independent?