Judges Skeptical as Lieber Reiterates Harvard Should Pay His Legal Fees in Appeal Hearing

Justices on the Commonwealth’s highest court appeared skeptical Wednesday as lawyers for former Harvard Chemistry chair Charles M. Lieber — who is preparing for trial on federal criminal charges — argued in an appeal hearing that Harvard should be obligated to pay for his legal defense.

Lieber faces federal charges of making false statements to federal investigators examining his funding sources; he has pleaded not guilty and his jury trial is set for December.

Officials allege Lieber misrepresented his affiliation with China’s Thousand Talents Program, a talent recruitment program, and failed to disclose funding from the Chinese government.

In October 2020, Lieber filed suit in Middlesex County Superior Court, alleging the University violated its contract by refusing to indemnify him in the criminal case. This past May, a lower-court judge declined to issue a preliminary injunction that would force Harvard to cover his fees.

In Wednesday’s appeal hearing before the Massachusetts Supreme Judicial Court, David R. Suny, one of Lieber’s lawyers, told a six-judge panel that the case was “about helping Professor Lieber achieve the right to academic freedom,” and the high-profile nature of the case meant indemnifying him would advance academic freedom more broadly.

Suny previously noted in a briefing to the court that Lieber testified under oath that paying his legal defense would “‘substantially, if not completely, deplete [his] financial resources.’”

“Further, Professor Lieber averred that advancement is necessary to provide for the financial security of his family as he continues to fight the terminal illness of follicular lymphoma,” the briefing continues.

Justice Serge Georges, Jr., however, criticized Suny’s argument Wednesday, calling it “really arrogant” and “very elitist” that a white-collar defendant would use a claim of depleted financial resources to argue for indemnification.

According to the suit, University Executive Vice President Katherine N. Lapp denied Lieber’s request for indemnification in May 2020, invoking exclusions in the indemnification policy. Lapp referred specifically to a clause excluding actions in which “the Qualified Person is adjudicated or determined not to have acted in good faith.”

On Wednesday, Joan A. Lukey, a lawyer representing Harvard and Lapp, reiterated Harvard’s stance that Lieber had willfully misled the University by not reporting his affiliations to Chinese institutions.

“I’m going to start very briefly by pointing out that 16 times between 2012 and 2019, Professor Lieber had the opportunity and the obligation to report his outside employment contracts, compensation, and lab arrangements. These were required,” Lukey said.

Lukey said that by misleading Harvard, Lieber “almost got the University into the same trouble that he was in.”

“Harvard goes through all these reports and sits down with Charles Lieber in November of 2018. He denies that he has any affiliation with [Wuhan University of Technology] of any meaningful kind,” Lukey said. “He says he has no teaching contract, has never had anything to do with the Thousand Talents Program.”

Suny argued that Harvard’s indemnification policy terms are too ambiguous, and that “any ambiguity should be construed against the drafter of the policy, Harvard.”

Justice David A. Lowy, however, questioned Suny’s argument, noting that the policy explicitly states that Harvard retains the right to deny indemnification if the school determines a faculty member violated terms of the policy.

"What’s ambiguous about that?" Lowy asked.

Faculty of Arts and Sciences Dean Claudine Gay declined to comment on Lieber’s case in an interview Thursday.

—Staff writer Meera S. Nair can be reached at meera.nair@thecrimson.com.

—Staff writer Andy Z. Wang can be reached at andy.wang@thecrimson.com.