A judge has ruled that a Gibson Dunn partner deliberately misled the court, opening the lawyer up to possible criminal charges and the prospect of
being struck off. Gibson Dunn has already suspended partner Peter Gray and removed his profile from its
Gray was instructed by the government of Djibouti in its long-running feud with opposition leader Abdourahman Boreh. Boreh, a wealthy businessman, was sentenced by the Djibouti courts in 2010 to 15 years in prison
for ordering a grenade strike on a Djibouti supermarket in March 2009, and now lives in exile in Belgravia. The government's terrorism case hinged on phone calls which Boreh made on 5 March, the day after the grenade attack. Boreh was recorded saying, "last night the act was completed in the first district
" and "the people heard it and it had a deep resonance
". Although Boreh insisted that he had been talking about handing out anti-government leaflets, the date of the calls incriminated him sufficiently for Djibouti prosecutors to be able to secure a conviction.
Gray, acting for the Djibouti government, used the same evidence to obtain a $100 million freezing order against Boreh's assets from Mr Justice Flaux in September 2013.
There was just one problem. In August 2013, a month earlier, a Gibson Dunn associate in Paris decided to check the call logs of the intercepted conversations. Deborah Ngo Yogo noticed that the calls were dated 4 March, not 5 March. Which meant that they took place the day before the grenade attack, not after, with the result that they couldn't possibly have caught Boreh discussing the aftermath of the attacks as claimed. Yogo emailed her discovery to Sara Merchant, another Gibson Dunn associate in Gray's team. Merchant sent the startling evidence on to Gray, saying, "unless I am missing something, this would be a very large discrepancy
". Gray replied thanking Yogo (who is now at Shearman & Sterling), saying, "Many people would not have checked and disaster would most certainly have followed
But instead of informing the court that the key basis on which the freezing order was being pursued was fatally flawed, the 39-year-old partner told his team, "we can get away with the date error
". Gray said that he was "going to fudge the error of the date, it doesn't affect the underlying evidence
". The freezing order was duly granted.
In an unpleasant development, Gray than set about using Flaux's judgment in submissions to Interpol and other law enforcement agencies in an effort to get Boreh extradited to Dubai. Not for a retrial on the basis that the incorrect date meant that Boreh's conviction was unsafe, but so he could be delivered into the hands of Djibouti's security forces and locked in a prison cell for, in all likelihood, the rest of his life. In his submissions Gray wrote that "an English Court has already held that there is at least a good arguable case that Mr Boreh committed the crimes on which he is accused
". A flabbergasted Flaux was none too happy at being roped into Gray's attempts to deport Boreh, calling his use of his judgment "thoroughly improper
" given that it had been obtained by Gray "knowingly misleading
" the court as to the date of the calls.
Gray also contacted US Homeland Security, which only got involved because of Boreh's alleged terrorism. Despite being aware of the correct date of the calls implicating Boreh, Gray emailed it the wrongly-dated transcripts. Gray claimed this was "inadvertant
". In his judgment delivered this week in which he overturned the freezing order made against Boreh, Flaux disagreed, saying, "it seems to me more likely that his email was continuing the strategy of concealing that the conviction and the evidence in support of it were unsafe
But the cover-up wasn't perfect. While Homeland Security got the shaky evidence, the date was corrected in the Interpol extradition request. Not in the confession of an alleged accomplice which formed the main substance of the request, where the date remained incorrect, but buried in a list in a section headed Telephone Interception Evidence
where, Flaux said, "it was left to the diligent reader to glean the inconsistency
However, Boreh's solicitor Byrne & Partners did glean the inconsistency, in September 2014, and wrote to Gray about what it had spotted. It pointed out that as the transcripts were misdated, the court had been misled and Djibouti's case was unsustainable. Gray said on the stand that he took the letter "seriously
", though emails he sent counsel at the time in which he dismissed Byrne & Partners' points as "bollocks
" and "a storm in a teacup
" suggest he was hoping the issue would just go away.
It didn't. Boreh pursued an application to overturn the freezing order, which eventually lead to victory for him and a potentially career-ruining judgment for Gray in the Commercial Court.
Boreh wearing his favourite victory vase
Flaux said that Gray had been given ample opportunities to come clean. He should have used Bryne & Partners' enquiry as a chance to admit that he'd known the date of the transcripts was bogus before the freezing order was granted, "which is what it seems to me any honest solicitor conscious of his duties to the court would have done"
. Instead Gray embarked upon a "descent into what became even more evasive conduct
Flaux cited Gray's slippery response to Byrne & Partners' letter and his defence of it on the stand as "acceptably evasive
" as prime examples. That ingenious phrase, an
"attempt by an English solicitor and partner in a City firm to justify a
positively misleading letter to the other side's solicitors"
was, said Flaux, "breathtaking
It wasn't the only one of Gray's missteps. In November 2014, with no sign that Byrne & Partners was going to stop asking Gray questions about the dodgy date (Gray was still telling counsel it was "a non-point
"), Gray's underlings asked the partner if they should sift through the emails in the matter to work out how they managed to put the wrong dates in the freeezing order application. Gray emailed back within minutes, sounding somewhat panicked: "This is a waste of time. Please do not do that. All you are likely to find is that on date X we realised the error, addressed it and moved on. Is that something you think it is appropriate to admit to the court? Would you like me to publically apportion blame on other lawyers?
It was, said Justice Flaux, a "disgraceful
" email. Not only was Gray burying the truth, he had made a "wholly wrong
" attempt to suggest that other lawyers were also to blame,"when he knew he was the only English solicitor
" who sat through the September 2013 freezing order hearing "knowing the full implications of the misdating issue
Gray's cover-up really started to unravel in mid-November 2014 after Flaux "forced him to come clean
" when he ordered Gibson
Dunn to file an affadavit setting out whether any of its lawyers knew at
the time of the freezing order in September 2013 that the date
of the call transcripts was bogus. And it seems Gray realised it. He texted a member of his team: "Obviously I will have to fall on my sword re being told about the date discrepancy and take the heat for it
". Though in another text, to counsel, he pleaded ignorance: "It turns out I was told about the error in August. I completely forgot about it, in the midst of so much. However I can see I will be accused of all kinds of things
And he was, although his excuse that he'd merely suffered a memory lapse didn't wash. Flaux, noting that he recognised the "seriousness of the allegations
" against Gray and the "implications for him
", said that in his view the lawyer knew full well that the freezing order was being made on a false basis and therefore concluded that Gray "did deliberately mislead the court
Though Gray didn't mislead the Djibouti government, who Flaux said "are not blameless ingénues here
". In fact the judge was "extremely sceptical
" of its evidence, too. Not least because, after the error in the transcript dates came to light, the Djibouti state provided Gibson Dunn with photos of an unexploded grenade in a government building which it said was evidence of another terrorist attack. It said the pictures were taken on 3 March, and therefore lined up with Boreh's genuine call times. However Gibson Dunn spotted from the photos' metadata that they were actually taken a month later. Flaux called Djibouti's efforts "pretty desperate
But Djibouti will probably suffer less than Gray. Gibson Dunn has already removed his profile from its website. In a statement provided to RollOnFriday the firm said, "We are very disappointed that the conduct of our Dubai-based partner, Peter Gray, fell far below the standard which the Court rightly expects of all counsel. We have apologized to the Court for these shortcomings. The Firm had already suspended Mr. Gray pending further inquiry
It added, "It is important to note that the allegations of misleading the Court were made only against Mr. Gray and not against any other partners or employees of the Firm. We will continue to represent the Government of Djibouti in pursuing its claims in this matter
Gray now faces the possibility of criminal charges and being struck off.
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