Andy has a helpful post about "pretexting" by investigators employed by Hewlett-Packard, and new reports reveal additional details that raise further legal ethics issues for lawyers involved in the investigation. Today's NY Times has an article on the investigation, including allegations of electronic espionage ("detectives tried to plant software on at least one journalist's computer that would enable messages to be traced"), obtaining private phone records, and even direct surveillance of journalists. Zowie. A couple of interesting tidbits in the article:
1. Apparently a lawyer associated with the private investigator firm provided a legal opinion that the investigative techniques were legal. I'm not sure what kind of legal cover this is trying to create. Reasonable reliance upon the advice of counsel is a defense to certain claims, like willful patent infringement and bad faith denial of insurance coverage, and in a criminal prosecution it may negate the element of criminal intent. But in order to take advantage of an advice of counsel defense, the party seeking the opinion must have sought and relied upon the advice in good faith. As the Times article reveals, HP delegated the investigation to an outside firm, which in turn hired another outside firm, which hired another outside firm. While there may be legitimate reasons for subcontracting out specific tasks, this smells funny -- it looks like HP was trying to contrive ignorance, or rely on "plausible deniability." That sort of structuring would tend to undercut the claim that HP (or other investigators) relied on the lawyer's opinion in good faith.
2. The investigation was supervised by an HP senior counsel who is also the company's director of ethics. That's great. Apparently the job of the director of ethics comes with a narrowing construction -- "ethics" is construed as "whatever we can get away with." Even in legal ethics, where lawyers can plausibly claim (in some contexts) to be permitted to push the boundaries of the law, the law is not understood as "whatever we can bamboozle a court into." That would be a major jurisprudential mistake, relying on a caricature of legal realism that no one ever believed in. Outside legal ethics, however, you'd think that an ethics advisor would be concerned with broader issues such as the reputational fallout that might accompany revelations that a companies was spying on dissident directors, or even the ethical issue of whether a company ought to be engaged in this kind of conduct.
Separately, I hope lawyers involved in providing these opinions are really sharp on the law of lawyering. The use of deceptive tactics in investigations is a tricky area, as Andy has pointed out. Cases are all over the place, and you never know when a court might decide to enforce a duty that lawyers had been content to ignore. Hammad (the 2d Cir. case on confidential informants) is a case in point, as is the Gatti case from Oregon.