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Examining 'honest services' post-Skilling

Steven Wisotsky, a law professor at Nova Southeastern University Law Center, has written an interesting piece, Honest Services Fraud After Skilling v. United States published in the Federalist Society's Practice Groups' Journal Engage, tracking the historical, legal, and judicial developments leading up to Skilling v. United States. Professor Wisotsky then focuses his analysis on post-Skilling jurisprudence and the "unresolved issues" regarding honest services.

Professor Wisotsky writes:

The cycle of the Court imposing limits on the mail fraud statute and inviting Congress to speak "more clearly" may continue. On September 28, 2010, the Honest Services Restoration Act was introduced in the Senate by Senator Patrick J. Leahy. The bill was sent to committee, but it was not passed before the session ended, thereby killing the bill. The bill included both undisclosed self-dealing for public officials and undisclosed private self-dealing for officers and directors. The term "public official" was defined, but "officers" and "directors" were not. The bill also required a mens rea requirement; the individual must "knowingly falsify, conceal, cover up, or fail to disclose material information that is required to be disclosed regarding the financial interest in question by any Federal, State, or local statute, rule, regulation or charter applicable" to the individual.It is unknown whether the bill will be re-introduced.

The Skilling decision did not address important questions regarding honest services and has also created some new ones. For example, it stated that the Court's definition of honest services fraud only reaches serious culpable conduct without defining the term "serious" or explaining whether "minor" frauds can be prosecuted under the honest services statute.Other lacunae relate to the existence vel non of a fiduciary duty, public or private.

Legislative efforts post-Skilling have also been accompanied with suggestions from experts like Elizabeth Sheyn to clarify honest services.

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Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.