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The Hewlett-Packard Co.’s scandal involving a media leak from the boardroom has lawyers on high alert about how they and their clients obtain private information. At issue is a controversial data-collecting method known as “pretexting,” in which false pretenses are used to obtain private data. That’s allegedly what happened in the Hewlett-Packard case, in which investigators allegedly posed as board members and members of the press to trick phone companies into releasing phone records. Allegations that lawyers knew about the pretexting in the Hewlett-Packard case but did nothing about it is striking too close to home for attorneys across the nation who find themselves in similar situations involving pretexting and investigators. The case has lawyers re-examining their investigative techniques and questioning under what circumstances pretexting should be used. [NLJ, Feb. 6.] The H-P scandal comes on the heels of a nationwide movement to make pretexting illegal, specifically for phone records. Currently, a bill is pending in Congress to make pretexting for phone records illegal. Illinois passed a bill outlawing pretexting in July. California Attorney General Bill Lockyer has said the conduct under investigation in the H-P case runs afoul of three state statutes. The H-P case “definitely sends a message to be careful, and it should send a message to both general counsels, as well as outside counsel, to be careful here,” said Frank Morris, an attorney who counsels companies on privacy matters. Morris, of the Washington office of New York’s Epstein Becker & Green, said that while the legality of pretexting is “borderline”-it is commonly used to weed out housing or employment discrimination-attorneys should be wary. “Anybody who proceeds without careful consideration exposes themselves, or even worse-their clients-to adverse publicity and possibly legal claims,” said Morris. He added that “there’s an increase in conversation about this topic.” Ethics expert David Hricik, a law professor and former chair of the American Bar Association Section of Intellectual Property Law’s professional responsibility committee, said the H-P case has also prompted attorneys to re-examine how they deal with investigators they hire who may want to use pretexting. “The question that I have seen raised is should lawyers give to investigators a letter that says, ‘Here are the dos and don’ts. And one of the don’ts is, Don’t pretext, it’s illegal,’ ” Hricik said. He added that “ [a]lmost immediately after the H-P case came out, an e-mail went out on a listserv I’m on asking whether to advise agents not to engage in that sort of conduct.” Dangerous gray area Hricik, who teaches at the Mercer University Walter F. George School of Law, said the legality of pretexting is still a gray area. For example, using trickery to catch a discriminatory landlord serves a social good, but using it to obtain private cellphone records could constitute a crime. Chris Hoofnagle, a former staff attorney at the Electronic Privacy Information Center in California, said lawyers have yet to learn their lesson about pretexting, particularly when it comes to obtaining cellphone records. In February, Hoofnagle wrote letters to all 50 state bar associations notifying them that lawyers were buying illegally obtained cellphone records from online data brokers who used pretexting to obtain the phone records. He asked the bar associations to caution attorneys that the practice was illegal and to stop doing it. The Washington State Bar Association was the only one to act on Hoofnagle’s advice and wrote a letter cautioning lawyers about the pitfalls of pretexting. “We took the letter at face value that this might be something that lawyers were engaged in without really thinking about the professional-conduct implications of it,” said Pam Anderson, chairwoman of the Washington bar’s Rules of Professional Conduct Committee. As to whether lawyers should avoid pretexting-particularly in light of the H-P scandal-Anderson said: “[W]hat lawyers should not be doing is directing someone to try to circumvent the laws that restrict disclosure of information.” The ABA said that it did not have a position on pretexting. Several state bar associations declined comment. A spokesman for the New York State Bar Association said the group had received no formal complaints about using pretexting.

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