Pretexting, Canadian Style

From one of my very smart colleagues at the firm – a recent Canadian case involving “pretexting” like activity a la HP.

The short story: A company hires an investigator to see what some former employees are up to, since they’ve started a competing business. Based on what they find out, they sue the employees. In discovery (in rough terms, the process through which each party gets to look at the information that the other side has supporting their case), the employees find out that the investigator has obtained their phone records and also has recorded them on video at their business premises, in both cases without their consent and without a court order.

Sound somewhat familiar?

So the employees countersue the company and the investigator. It turns our that the company wasn’t aware of the methods used by the investigator and so is left off the hook, but the action against the investigators is given the green light.

Whether or not the claim of the employees will succeed remains to be seen. In the meantime, folks thinking of using investigators, for whatever purpose, would be wise to give serious consideration to the nature of information that they want to collect.

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.

Were You Once a Brobeck Client?

Very interesting post on TechCrunch on how the digital records of law firm Brobeck, Phleger & Harrison, for some 10,000 clients, will be preserved and made available to a limited group of scholars and researchers, through what will be called the Brobeck Closed Archive.
Wow. At first blush I had the same reaction as Michael Arrington (the TechCrunch guy) and the guy who wrote the original article that he cited. But if you read through the FAQ at the sight, as well as the comments that the professor who is running the thing posted on TechCrunch, its pretty clear that they’re not going to be displaying lawyer-client documents on a website for all to see – there will be some measure of protection put into place.

That being said, though I certainly understand the historical significance of these records, and the objectives of the archive (which seem entirely noble) I get a bad feeling about this generally – you know, kind of like that little tickle at the back of your throat that almost, but not quite, wants to make you cough. Heck, if I were a client of a law firm, would I want anyone looking at my counsel’s records on me? Even if it were a researcher? Even under NDA? And even with restrictions? Well, no, I don’t think so. Not at all. Its not any researcher’s business – not at all. So sure, maybe as an opt in program, if the client consents, but otherwise, even, I think, where a corporate client no longer exists to approve disclosure, the records should also do the same.

So, if you were once a Brobeck client, and haven’t seen the notice, you might want to get in touch with the archive.