For those of us who thought Jeffrey Epstein probably had a larger group of rich and powerful acquaintances than we had known about, the Wall Street Journal appears to have proven us right.

A story over the weekend says the following people spent a little (or quite a lot of time) with Epstein even after he was a registered sex offender:

The list goes on. What struck me about the story was that it entirely neutral in tone. It didn’t say these people had done anything illegal or even wrong. It just reported on the contacts and let the readers decide for themselves. Some of the meetings scheduled with Epstein couldn’t be confirmed. None of the meetings in the article took place on Epstein’s private island in the U.S. Virgin Islands.

This is exactly what our due diligence does. We never write,  “This is a bad person” or “This is a great person.” We don’t say “This looks like a low-risk investment.” We present all the facts and let our clients decide what to do with them.

For that reason, I have never testified as an expert witness about our findings, because they are drawn from sources that speak for themselves: Public records (which like ordinary business records not subject to the hearsay rule), and newspaper and other media records. We don’t assert that the newspaper got it right, or that the person’s allegations on his LinkedIn profile are correct.

We just report what we find, being careful to help our clients understand how they might want to weigh the evidence and how the evidence fits together. An SEC proxy filing that someone resides in a particular place or is a particular age is more reliable than an assertion on Instagram. People and companies do lie on SEC filings – just not that often. A drunk driving charge is something a lot of people get and recover from. A DUI around the time of a gap in a resume that covers up being fired for drinking on the job is more serious.

Not Just About Breaking the Law

Should these famous people have remained clear of Jeffrey Epstein after he pleaded guilty in 2008 to soliciting and procuring a minor for prostitution? They did nothing illegal in doing business with such a person.

But due diligence is often about more than just the question, “Did they break the law?” Many of the people who met with Epstein told the newspaper they regretted ever knowing him, probably because what has come out about Epstein since those meetings is many times worse than one charge of soliciting and procuring (which for many would have been enough to stay clear).

The meetings with Epstein noted in the article took place between 2013 and 2017. Epstein died in prison while facing charges brought in 2019 for sex trafficking between 2002 and 2005. The U.S. Attorney for the Southern District of New York alleged that Epstein “sexually exploited and abused dozens of underage girls by enticing them to engage in sex acts with him in exchange for money.”  Last year, Epstein’s longtime associate Ghislaine Maxwell was sentenced to 20 years in prison for conspiring with Epstein to sexually abuse minors.

The Felon Continuum

Many people would have looked at Epstein’s conviction from five years before and run for the hills. Others think it shameful to be penalized for losing a job or losing business for dealing with convicted felons.

Some people distinguish between associating with white collar criminals (say Michael Milken) and violent criminals (I certainly would include soliciting and procuring minors in the latter category).

On the other hand, New York actually favors people with criminal records in deciding who gets cannabis dispensary licenses. And as Leon Botstein said in the article, he met with Epstein knowing about the guilty plea because “we believe in rehabilitation.”

Many states require lawyers to report to authorities when they see evidence of an ongoing crime. If any of the people in the article had commissioned due diligence of Epstein, they would have found a past crime. Allegations in the media of more wrongdoing are certainly pertinent and reportable in the course of due diligence, but don’t amount to looking the other way when a crime is clearly being committed.

However I personally come down on the issue of Epstein or anyone else (and I am happy to give clients my views if asked), my due diligence just reports and lets the clients come to their own conclusions about whether to do business with the person in question. Sometimes their conclusions are not the ones I would have made.

But that is the client’s business, not mine.