Once he realized that Whelan was only seeking advice and not looking to hire Ballard long-term, Makadon has said, he zoned out of the discussion.
As for Cohen, he reportedly told investigators he did not recall being shown a document or any discussion of going to prosecutors. In general, Cohen did not view the matter as potentially criminal because that was not his area of specialty.
In recent interviews, veteran lawyers said they were surprised by Makadon's and Cohen's responses.
L. George Parry, a defense lawyer and former prosecutor, said that assuming Whelan's version of events was correct, he found puzzling the lack of advice about contacting law enforcement.
"I would hope if I was ever in that position as an attorney, I would do the right thing and tell the person who sought my advice, if the person feels that he's a victim of a crime, that they need to contact the authorities."
Dan Richman, a former federal prosecutor who is a law professor at Columbia University, said much depended on how blunt the discussion was.
If it was a clear criminal demand, Richman said, then "their advice to work it out with the senator is problematic."
Stephanos Bibas, a law professor at Penn and a former federal prosecutor, agreed that the details of the conversation mattered. He noted that Whelan apparently had not used the magic word bribe to characterize Fumo's demands.
Bibas said that, all things considered, the Ballard pair might have handled matters well.
"These are professional lawyers," he said. Provided no crime was suspected, "you could make an argument that Verizon's interest might be better served by playing ball" with a powerful senator.
The lawyers agreed on one thing: Had prosecutors been contacted, the FBI almost certainly would have launched an aggressive undercover investigation.
"The individual could be wired," said Thomas DiBiagio, a former U.S. attorney in Maryland.
"Then you can convict him with his words."
As it happened, nobody, not Whelan or Cohen or Makadon, called the cops. The FBI learned of Fumo's pressure on Verizon only years later.
Nor did the government ever charge Fumo with any wrongdoing in connection with Peco or Verizon. That was because, prosecutors said in the indictment, Fumo's scheme to obstruct justice "succeeded in destroying virtually all e-mail evidence regarding the Peco and Verizon matters, thwarting the investigators' ability to determine whether federal crimes were committed." Instead, prosecutors chose to indict Fumo for how he spent money, not for how he raised it.
After the session at Ballard Spahr, Whelan relented on a few of Fumo's demands but held firm against anything he thought would put money in Fumo's wallet.
Whelan refused to deposit any Verizon funds in Fumo's bank. He also would not give any money to Citizens' Alliance.
But he did agree to give to another nonprofit on Fumo's list, the Philly Pops. Fumo has long been a close friend of Pops conductor Peter Nero's. Verizon donated $500,000 to the Pops.
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