I’ve often said that lawyers representing corporations should never underestimate the creativity of the plaintiffs’ bar.  However, it seems that the white collar criminal defense bar may not be slouches in the creativity department either.

I’m referring to a recent report in The Wall Street Journal that the legal team representing Elizabeth Holmes, the “disgraced Theranos founder,” is considering using her mental health (presumably, the lack thereof) as a defense in her upcoming federal trial for engaging in a variety of frauds.

I’m prepared to admit that I am totally if morbidly fascinated by the Theranos case: I’ve read the phenomenal book, Bad Blood, by John Carreyrou – twice, in fact – and will surely be among the first to see the movie (which reportedly will star Jennifer Lawrence as Holmes in what strikes me as the best casting choice ever); I’ve attended programs featuring Tyler Shultz, the whistleblower who blew the top off the fraud (and whose grandfather, former Secretary of State George Shultz, was on the Theranos board at the time in a family saga worthy of Aeschylus); I’ve listened to the podcast; I’ve watched the HBO documentary; and much more.  Still, it seems just surreal.

Among other things, if Holmes avoids time at Club Fed by this defense, will there be a new claim against board members – namely, that they were negligent or worse in not realizing that someone in the C-suite was stark, raving wacko?  Will directors feel (or be) obligated to have prospective CEOs or other members of the C-suite undergo some sort of sanity check?  What about reports that one in five CEOs have psychopathic tendencies?

As if that weren’t enough, a law professor cited in the WSJ article cited above (subscription required) is questioning whether corporations themselves (i.e., not individuals) should be able to plead some sort of mental defect.  He says that “corporate criminal justice rests on the fiction that corporations possess ‘minds’ capable of…culpable mens rea….But what if a corporate defendant’s mind is disordered?”  OK, I get that, but the professor loses me when he says that “punishing such corporations undermines the goals of criminal law, leaves victim interests unaddressed, and is unfair to corporate stakeholders.”  Really?  How are victim interests addressed by a finding that the corporate defendant is not guilty by reason of mental defect?  How is it unfair to stakeholders?

Moreover, in the case of an individual defendant, a court can require institutionalization, therapy, or other treatment. What kinds of treatment are available for a deranged company?  Would any individuals be subject to punishment for the company’s infirmity?  Would its board be sentenced to mandatory attendance at the Stanford Directors College or a Council of Institutional Investors meeting?  A stern lecture by ISS?

I suppose it’s a good thing that attorneys are being creative, but sometimes there can be too much of a good thing.