Thursday, September 21, 2006
The attention in the Hewlett-Packard investigation will turn to Congress on September 28 when a subcommittee of the House Energy & Commerce Committee grills chairwoman Patricia Dunn, general counsel Ann Baskins, outside counsel Larry Sonsini, and security manager Anthony Gentilucci. Outside private investigator Ronald DeLia, who has been linked to the "pretexting" that is the ostensible subject of the hearing, will assert his Fifth Amendment privilege (see Bloomberg story here). An article in The Recorder (here) lists the various white collar crime practitioners who have been retained by Dunn, Baskins, Sonsini, and H-P's chief ethics officer, Kevin Hunsaker. I assume the company is paying for all the attorneys, and it is likely that some -- or even all -- of the other board members have retained counsel.
An interesting question will be whether Baskins, Sonsini, and Hunsaker, if he is asked to testify, will assert the attorney-client privilege in response to questions at the hearing. A New York Times article (here) quotes from an e-mail Hunsaker sent that explains the reason why he was taking over supervision of H-P's internal investigation: "Ann Baskins has asked me to oversee the investigation into this in order to protect the attorney-client privilege in the event there is litigation or a government inquiry of some sort." Well, the government inquiry is here, and there may well be a privilege waiver already.
Even if the witnesses attempt to assert the attorney-client privilege, it is not entirely clear that Congress recognizes such a claim to prevent testimony. There have been instances in the past in which Congressional committees rejected attorney-client privilege claims on the ground that the Legislative Branch does not recognize common law privileges, as opposed to a constitutional privilege such as the Fifth Amendment. For example, in hearings related to the Ferdinand and Imelda Marcos regime, a committee recommended contempt for lawyers who asserted the privilege, although the contempt citation ultimately rested on the basis that there was no attorney-client relationship. A recent article in the American Criminal Law Review entitled "Congressional Investigations and the Role of Privilege" discusses the issues (43 Am. Crim. L. Rev. 165 (2006)). There is a chance that a broad attorney-client privilege claim by Baskins or Sonsini could trigger a move to hold either in contempt, although I expect that the parameters of their testimony will be worked out in advance.
The lawyers who will be witnesses have to be equally careful about guarding the attorney-client privilege, regardless of how Congress views its right to reject a common law privilege claim. Under California law, which covers Baskins and Sonsini, they are required to "maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client." (Cal. Bus. & Prof. Code Sec. 6068(e)(1)) It's that "at every peril" language that could put them at risk if Congress were decide to push the privilege issue, however unlikely that may be. In their testimony, the California lawyers have to be especially careful in what they say. (ph)