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Semafor LogoBen Smith
Ben Smith
media

Top Fox lawyer's "big screw up" could reveal Lachlan Murdoch's secrets

with Max Tani

Ben is the co-founder and Editor-in-Chief of Semafor, coming over from the New York Times. Max is Semafor's media reporter, and joined us from Politico. Sign up for their media newsletter, out every Sunday night!

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Title iconThe Scoop
Lachlan Murdoch, co-chairman and chief executive officer of Fox Corp., attends the annual Allen and Co. Sun Valley media conference in Sun Valley, Idaho, U.S., July 11, 2019
Reuters/Brendan McDermid

Fox Corp. CEO Lachlan Murdoch’s top lawyer spent nearly four years without a license to practice law in California, which could have major consequences for high-stakes lawsuits tied to Fox News’s coverage of the 2020 election.

Viet Dinh, who earned $12 million last year as the Murdoch son’s effective second-in-command, became the company’s chief legal officer in September of 2018. He lives in Los Angeles, where the company is based. But records at the California State Bar indicate that he only became licensed to practice law in the state this June.

Dinh is a prominent Republican legal figure best known for writing the Patriot Act as a Bush Administration lawyer, and he’s licensed to practice law in Washington, DC. His status with the California bar was first raised internally at Fox in 2018, a person familiar with conversations at the time said. The person recalled that Dinh dismissed the concern.

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More recently, however, he has scrambled to quietly fix his licensing issue, which could open up otherwise privileged, and potentially sensitive or embarrassing, communications with Murdoch to discovery because they don’t qualify for attorney-client privilege.

“It is a pretty big screw up for a major corporation and a big ticket guy,” said Shawn Martin, a law professor at the University of San Diego who has served on the State Bar’s Committee on Professional Responsibility and Conduct.

Martin said that Dinh is unlikely to face personal sanctions, but that there could be consequences for defamation cases facing the company. “This will be another layer that plaintiffs can use to say those communications aren't privileged.”

Fox is facing two major federal defamation lawsuits: Dominion Voting Systems is suing for $1.6 billion in damages, while the voting tech company Smartmatic is suing for $2.7 billion.

“This news potentially opens the door to his communications with Fox executives,” said the lawyer representing Smartmatic, J. Erik Connolly, after Semafor brought the public records to his attention. “That is something Smartmatic will be asking for as we move forward with discovery.”

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The laws around privileged communications are complex, and depend on a number of factors. Plaintiffs could already seek some of Dinh’s communications on the grounds that much of his role involves operating the business, rather than strictly legal matters. And the fact that he is not registered as a lawyer could further open the door to questions of whether he was acting as one in his job.

Mr. Dinh’s emails and texts are likely to be sensitive. He is a dominant figure at Fox and the godfather to one of Lachlan Murdoch’s sons.

A Fox News spokeswoman, Irena Briganti, said Dinh’s law license has “no bearing on any pending litigation or matter of privilege.”

“The registration process began years ago, was delayed by the COVID-19 pandemic and was perfected in June," she said. A Fox News spokesperson said, on the condition of anonymity, that Dinh applied in January of 2019, but the State Bar of California lost Dinh's application; the spokesperson said he reapplied later that year, but COVID-19 delayed his application.

But the executive director of the State Bar of California, Leah Wilson, flatly rejected both claims.

“The assertions regarding lost or delayed applications are false,” she said in an emailed statement.

Fox did not respond to a request for documents that might confirm Fox's explanations for the missing license.

undefined headshotBen's view

Fox’s defense has been going badly, something that can sometimes be obscured by the day-to-day controversy its hosts create. The company lost motions to dismiss both cases — the first line of defense for media companies in defamation actions, and the point after which they become onerous and expensive. In July, Fox replaced its outside legal team handling the case, a sign of growing concern. Plaintiffs are currently deposing high-profile Fox hosts and executives.

Among the signs of intensifying legal worries are that Fox has repeatedly shortened the retention time for internal emails, first to 3 years in March of 2021 and then again to 13 months on July 1, 2022, according to a person familiar with their email retention practices.

The discovery process already unearthed an email suggesting the Fox News president Suzanne Scott knew her network was airing false claims, NPR reported. And Scott, a loyalist who has little control over the network’s biggest-name talent, appears to be the top candidate to take public blame for an expensive debacle given that, as in most family-controlled companies, the buck must always stop with the hired help.

Fox will defend itself, but litigation is risky and unpredictable, and general and punitive damages can be piled on top of even giant verdicts awarding specific damages. The Murdoch family is pushing through a merger of Fox Corp. and News Corp., the two companies it controls. News Corp. shareholders won’t be thrilled to have ten figures of liability hanging over their heads, especially as Fox’s defense blunders forward.

Title iconRoom for Disagreement

Defamation lawsuits are often used to silence legitimate journalism, and Fox’s lawyers have argued that the network was merely reporting on allegations made by others — though hosts like Lou Dobbs and Maria Bartiromo at times seemed to embrace those claims.

“A free press must be able to report both sides of a story involving claims striking at the core of our democracy — especially when those claims prompt numerous lawsuits, government investigations, and election recounts,” Fox’s lawyers wrote in a brief attempting to fend off the Dominion lawsuit in 2021. “When a sitting President of the United States and his legal team challenge a presidential election in litigation throughout the nation, the media can truthfully report and comment on those allegations under the First Amendment without fear of liability.”

What's more, the eyepopping numbers plaintiffs demand often end in smaller, if significant, settlements. The largest known settlement came in 2017, when Disney paid $177 million to a beef company whose product ABC News had called “pink slime.” (Both Connolly, the Smartmatic lawyer, and Fox’s new outside counsel, Dan Webb, represented the beef company.) The companies may struggle to prove billions of damages, and a federal investigation into Smartmatic won’t help.

And while the fringe broadcaster Alex Jones lost a record $965 million judgement in state court this month, the largest federal defamation verdict ever upheld on appeal remains a $3 million judgement against a CBS affiliate that accused a tobacco company of using “pot, wine, beer and sex” to attract young smokers.

Title iconThe View From Sydney

Fox’s coverage of January 6 continues to haunt its CEO in Australian court too. There, Lachlan Murdoch is the plaintiff in a libel case against a local publication, Crikey, which published a column concluding that “the Murdochs and their slew of poisonous Fox News commentators are the unindicted co-conspirators of this continuing crisis.”

Crikey scored a “significant win” Friday when a judge ruled that Lachlan Murdoch would have to explain his own view of who won the 2020 election, and that Fox News clips could be played in court — two things Murdoch’s lawyers had sought to avoid, according to the Fin’s Mark Di Stefano.

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