all in the genes

Wired has a story about the passage in the US HR of the Genetic Information Nondiscrimination Act. The nub:

If legislation passed Wednesday by the House of Representatives becomes law, it will be illegal to deny a job or health insurance on the basis of a person’s genetic makeup.With more links drawn between genetic profiles and disease predispositions every day, supporters of the Genetic Information Nondiscrimination Act say the bill will ease patients’ worries of being singled out for faulty genes.

As genetic technology becomes more and more advanced and accessible, it will be interesting to see how things develop. For example, although this bill makes it illegal to deny someone employment based on genes, what happens if people start voluntarily disclosing their genetic results in order to make them stand out as a better candidate? If they do, the end result could be the same. And what then? Might the result not be the same? Would there be legislation then introduced to preclude positive, as well as negative discrimination?

It also makes for rather interesting ethical questions. For example, one argument that could be advanced is that genes simply reveal various characteristics of a person that may or may not make that person suitable for a job. For example, if genetic testing determines that an individual has a 90% chance of having a fatal stroke in the next year (and no, I have no idea whether or not that is an accurate example), should that person be hired as the pilot of a 747? Why would it not be reasonable to not hire that person on the basis of those results?

Of course, that very argument, if taken to its ultimate conclusion, also has the potential to lead to truly horrific (at least IMHO) dystopian societies.

Time to go watch Gattaca again.

Pretexting, Ethics and Clients

Still catching up a bit – very quick post on the HP “pretexting” thing. As you may recall, HP asserted that its practice of pretexting – i.e. pretending to be someone else to get confidential telephone records – was legal. They were investigated leaks to the press by one of their board members and had resorted to this practice to try and find the leak. I had commented elsewhere long ago when this story first broke that even if it were illegal, very few (if anyone) could consider such actions the least bit ethical.

As most of you know apparently there was some disagreement as to legality and a few folks at HP were charged. Then I read this recent story about how HP was ending its special ties to Larry Sonsini, of the California powerhouse firm of Wilson Sonsini:

Sonsini – famous for decades in these parts – gained national fame in September during HP’s spy scandal hearings in front of Congress. Emails between the lawyer, HP executives and former director Tom Perkins raised serious questions about how sound Sonsini’s advice was around the practice of pretexting. He seemed to indicate that phone record fraud sounded like fair game, after being nudged in that direction by HP’s internal lawyers.

My emphasis. Its unfortunate to hear of something like this. I don’t doubt that he took the time and effort to research the law to come to a reasonable opinion on the matter before advising his client – obviously it was a very grey area of the law. In those circumstances its unfortunate that he didn’t perhaps suggest, notwithstanding the black letter of the law, that it would be unwise do take the course of action they were contemplating. That as good corporate citizens with a significant public profile, that such a practice is not something they should even consider. But then again, maybe he did and they didn’t listen (and of course he would surely have the good sense never to say that in public and embarrass a major client) or maybe he thought that such comments were not for legal counsel to make. Who knows.

The situation is not unfamiliar to many lawyers – particularly when it comes to giving opinions – lawyers are sometimes subjected to pressure to deliver the opinion that a client wants to hear rather than the one they should probably be delivering. By this I’m certainly not suggesting lawyers are delivering bad or incorrect opinions. What I am saying is that there are often grey areas of the law (which tend to be the areas on which legal expertise are sought) and in respect of which opinions can go one of two or more ways. And sometimes, the client will want to hear a certain outcome – for example, in the case of HP, I’m sure they would have liked the comfort to hear from their external counsel that their actions were legal – it would serve as some evidence that they took some degree of diligence and could serve to mitigate consequences if it turned out governmental authorities differed. If he, on the other hand, refused, or proffered a legal opinion that it was fine but qualified with a recommendation not to take such actions, HP likely would have not been very happy with him. And everyone knows what happens when clients aren’t happy.

Its an unfortunate situation to be in. Particuarly in this case, where, at the end of the day, HP still, obviously, isn’t happy with him.