Wednesday, September 20, 2006
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)