Victoria's_Secret_Store_7 _722_Lexington_Ave _New_York _NY_10022 _USA_-_Dec_2012

I know Davis Polk & Wardwell is a stellar firm, but why does it trouble me that it’s investigating Jeffrey Epstein’s relationship with Leslie Wexner, the CEO of L Brands, the parent company of Victoria’s Secret?

Maybe it’s because I’m just naturally suspicious. Or maybe it’s because I’m hyperalert in these Trumpian times when conflicts of interest seem so rampant.

In any case, the board has retained Davis Polk, which the New York Times calls “a prominent law firm with deep connections to L Brands … to conduct a thorough review” into the Epstein-Wexner relationship.

But here are the niggling details: Davis Polk is not only the company’s outside corporate counsel, but the firm had a role in Wexner’s personal life. His wife Abigail was a former Davis Polk associate, and Dennis Hersch, the Wexners’ current business adviser, was a partner at the firm.

Do these ties put the firm too close to its subject, raising the specter of a conflict?

The legal answer is no. “There is no conflict,” says New York University School of Law professor Stephen Gillers. “Indeed, Ms. Wexner could herself work on the matter as far as the conflict rules are concerned if L Brands agrees.”

Fordham Law School professor Andrew Kent concurs that is the law, as does Berit Berger, the executive director of Advancement of Public Integrity at Columbia Law School.

“Law firms are placed in this kind of situation all the time,” Berger explains. “Given the reputation of the firm, I don’t think it would do a sub-par job.”

Kent adds: “It is quite common, that people and businesses choose lawyers based on social ties and other personal factors, and lawyers can and often do render independent and professional service notwithstanding such ties.”

That might be the norm, but this case hardly seems the norm. Indeed, even if there’s no technical conflict, won’t there be doubts about how hard-hitting the firm will be when it comes to a valuable client, particularly one run by a strong leader whose personal and professional relationship with the notorious Epstein can only be described as strange?

Let me just pause and remind you just how odd that relationship was. For almost 16 years, according to the New York Times, Wexner “delegated to Mr. Epstein virtually blanket control of his finances“—though there’s scant evidence of Epstein’s financial genius. Even after Epstein was revealed as a pedophile and Wexner discovered that Epstein had swindled him to the tune of $46 million, the retail billionaire never reported him to the authorities. And though Wexner now says he had no idea that Epstein was involved with underaged girls, how is that credible when it’s come out that Epstein repeatedly used his Victoria’s Secret connection to lure aspiring models to his nest? (The Times reports that Wexner was told that Epstein pretended to be a Victoria’s Secret scout but did nothing.)

I guess mistakes were made. That’s essentially what Wexner told his investors at the shareholders meeting Tuesday, reports Bloomberg: “Being taken advantage of by someone who was so sick, so cunning, so depraved, is something that I’m embarrassed I was even close to. But that is in the past.”

So is that what the investigation is meant to do? Make it official that it’s all part of the past?

What gives me pause is that the mandate for this investigation is unclear. (I’ve contacted Davis Polk and L Brands for comment, but have not heard back.)

If I were a shareholder in publicly traded L Brands, I’d be a total pain in the you-know-where about the whole thing—like, why am I paying a firm that appears personally connected to the person under investigation? Is this an investigation for the board or will be results be fully transparent?

“If [the investigation] is for its own internal use, it can choose David Polk. That’s its decision,” sums up Gillers. “However, if it wants the investigation to reassure the investing public or regulators that nothing amiss has occurred, then the current (or former) status of Ms. Wexner and the former partner’s current role may harm the credibility of any report L Brands makes public. That may not be fair, but it should be something I would expect the company to consider.”

So there it is: Davis Polk has no legal obligation to abstain, but that doesn’t mean it’ll pass the smell test.

 

Contact Vivia Chen at vchen@alm.com. On Twitter: @lawcareerist.