Following up on David's link to Patricia Dunn's testimony, and an article today in the WaPo covering the resignation of HP's general counsel, I continue to believe that the most interesting aspect of the HP leak scandal, from the legal ethics point of view, is the attempt by lawyers to create or take advantage of plausible deniability. The client -- here, Dunn and her allied directors (interesting MR 1.13(a) question) -- wanted to figure out who was leaking details of board meetings. Ask yourself how plausible it is to think that a high-powered businessperson, with lots of experience in the high tech industry, could believe that you can obtain the phone records of private citizens or conduct electronic surveillance of computer networks without breaking the law. ("Dunn professed not to know that illegal tactics were used.") Did Patricia Dunn reallythink she was supervising an investigation that was entirely above-board? No way. What she thought was if the lawyers told her it was okay, she would be insulated from liability, because she wouldn't have the requisite mens rea of knowledge.
Enter the lawyers. Although the company's general counsel has resigned -- and properly so -- for doing nothing to stop the illegal activity, the point person on the investigation seems to have been senior counsel and chief ethics director (that's great!) Kevin Hunsacker. But the plan to insulate upper management from knowledge went awry when an HP employee disclosed his "serious reservations" about the methods being used. (This, by the way, is a common feature of legal ethics scandals. There's always someone, like Sherron Watkins in the Enron case, who asks the inconvenient questions to which others have been turning a blind eye. And once the question is asked, it's no longer tenable to ignore the inconvenient facts.) The employee who raised these concerns sent an email to ethics guru Hunsacker. Hunsacker then asked how phone records were being obtained, and was told that it involved "some ruse." His reply is classic, and is probably going to end up in the next edition of many legal ethics casebooks: "I shouldn't have asked." Yup, you shouldn't have asked. The problem is, as the lawyer blessing this activity you have to ask. Otherwise any legal advice given to the client will not be reasonably well informed. If the client relies on your advice to its detriment, you've just committed malpractice.
Thus, the attempt to create plausible deniability by not asking hard questions is inconsistent with the duty of care owed by the lawyer to the client. It's impossible for a lawyer to represent a client competently and diligently, while also turning a blind eye to inconvenient facts.
According to the WSJ the HP GC is taking the Fifth and will not appear before Congress.
Posted by: Bill Freivogel | September 28, 2006 at 11:19 AM