Wednesday, September 20, 2006

H-P Lawyer at the Ethical Edge

A series of e-mails involving Hewlett-Packard's general counsel's office have come to light that shows the important role played by the company's lawyers, particularly its chief ethics counsel, Kevin Hunsaker.  Hunsaker appears to have been responsible for oversight of the internal investigation of leaks at the company that included "pretexting" to obtain private information about a number of journalists, directors, and corporate officers.  According to a New York Times article (here), Hunsaker sent an e-mail to Anthony Gentilucci, H-P's manager of global investigations, asking how an outside private investigator obtained cellular and home telephone records used to track contacts with journalists and whether it was proper.  Gentilucci responded, "“I think it is on the edge, but above board. We use pretext interviews on a number of investigations to extract information and/or make covert purchases of stolen property, in a sense, all undercover operations.”  Hunsaker responded, "I shouldn't have asked . . . ."

When the chief ethics officer at a company responds in that way, don't you think that might indicate a potential problem with the company's conduct?  And, why would anyone -- particularly a person with legal and ethics training -- commit to e-mail a statement like "I shouldn't have asked"?  That is the ethics counsel's job. 

In April 2006, Hunsaker sent another e-mail to Gentilucci seeking to confirm the legality of the investigation that included obtaining the private records.  The response appears to be that it is not illegal to engage in suc conduct.  To this point, then, it appears that H-P's position, as determined by its general counsel's office, is that "pretexting" is legal.  I'm not sure, however, that conclusion is entirely accurate.  It may well be that "pretexting" is not illegal, in that the law is very unclear as to whether it is a crime when conducted in the manner that H-P did, rather than to use the information for another illegal purpose, such as identity theft or blackmail.  But just because conduct is not illegal does not mean that it is legal.  More importantly, it seems that the person charged with overseeing H-P's ethical compliance might view obtaining private information about a person by engaging in conduct that is at least disingenuous, and potentially fraudulent, was unethical even if not illegal

Law is not ethics, and even momentary reflection should indicate that "pretexting" is wrong when done for the reasons H-P did it.  When the goal of serving the client/company's interests becomes paramount, then viewing things as proper when they are not clearly illegal becomes the norm, perhaps even for a person charged with ethics compliance.  By the way, it may be that the conclusion that "pretexting" is not illegal is flawed, which would raise an interesting "advice of counsel" issue of charges are ever filed.  For those interested in an excellent legal analysis of the ethical relationship between a lawyer and outside experts, including private investigators, check out Professor David Hricik's article, "Conflicts and Confidentiality: The Ethical and Procedural Issues Concerning Experts," available on SSRN (here). (ph)

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Is law not ethics? I have always viewed law as a codification of bottom-line societal values. Viewed this way, isn't every statute merely a formalization of lowest-common-denominator ethics? Even the tax code, as mercenary as is seems on the surface, is fundamentally society's judgment as to who should bear the costs of government (and its attendant corruption).

Posted by: Kurt Schulzke | Sep 21, 2006 8:40:45 AM

Given the continuing, and odd to a non-lawyer, suggestions that new laws are needed to "make pretexting illegal" I wonder if any sensible lawyers would argue with the following common sense observations, drawn from my blog:

"Pretexting is already illegal. In fact, the word "pretexting" is itself a pretext for a well-known crime that has been around for as long as one person has coveted something that belongs to someone else. The word 'pretexting" is simply a euphemism - invented by its practitioners - for obtaining something that does not belong to them by lying and committing fraud. "Pretexting" to get phone records that belong to someone else is no different than, say, going to a car repair shop and obtaining the keys to someone else's ride by pretending to be the owner of the vehicle. Now, do we need a special law to stop people from stealing cars by pretending to be the owner of the car? Of course not. We already have laws against theft by fraud.

Likewise, we already have laws that prohibit the sale of stolen property. We also have laws that prevent the purchase of stolen property if the buyer knows the property was stolen."

The complete post is at:

Posted by: Hal Plotkin | Sep 30, 2006 3:14:32 PM

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