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The woes of Larry Sonsini and Hewlett-Packard Co. General Counsel Ann Baskins are growing. On Friday the House Committee on Energy and Commerce revealed that it has asked both to testify at a Sept. 28 hearing entitled “Hewlett-Packard’s Pretexting Scandal.” In most circumstances, lawyers can safely stand behind the attorney-client privilege and refuse to discuss client matters. But congressional committee investigations are a different, and more demanding, creature. “The House in theory does not recognize the attorney-client privilege,” said David Kendall, of Washington, D.C.’s Williams & Connolly, who had frequent contact with House committees when he represented the Clintons in Whitewater investigations. Leslie Fagen, a partner at New York’s Paul, Weiss, Rifkind, Wharton & Garrison, agreed. “Congressional committees don’t necessarily acknowledge the attorney-client privilege,” he said. In the 1990s, he had to testify before a committee investigating his client, the Metropolitan Transit Authority. Another lawyer who has represented clients before House committees says these committees can take a hard line. “They’re virtually intolerant of the attorney-client privilege � and you can easily imagine a contempt citation if the witness refuses to testify.” In addition to Sonsini and Baskins, the committee has asked HP Chairwoman Patricia Dunn to testify, along with Ronald DeLia, the Boston private investigator who allegedly accessed the phone records of directors and reporters. The Hewlett-Packard mess began when Dunn ordered an investigation to identify the source of leaks about board deliberations. Sonsini is the board’s longtime outside counsel, but it’s not entirely clear what role he played in the probe. In a June e-mail to former HP director Thomas Perkins, Sonsini wrote: “I was not involved in the design or conduct of the investigation,” but instead that it was run by the HP legal department. “I am sure that Ann Baskins looked into the legality of every step of the inquiry,” he added in the e-mail. Perkins resigned in May because of the probe and its methods. Sonsini, who was asked to review the probe, also told Perkins that the pretexting � in which someone lied about his identity to get the phone records � was “within legal limits.” He later told The Wall Street Journal that he was relying on the conclusion of an in-house lawyer. Sonsini has continued to advise the board on the controversy, according to press reports. The committee’s letters to Sonsini, Baskins and the others are cast as “invitations” to testify. But, according to one lawyer whose clients have received similar letters, the invited witness has little choice. “We’ve never declined [an invitation],” says this lawyer. “I can’t imagine declination is a viable option.” The committee also has the power to issue subpoenas to compel witnesses to appear. Wilson Sonsini Goodrich & Rosati spokesperson Courtney Dorman did not respond to questions asking whether Sonsini plans to testify or whether he plans to assert privilege. It’s also not clear if Sonsini has retained a lawyer. HP couldn’t be reached for comment late Friday. According to Kendall, the penalty for asserting the privilege could be more severe than a contempt citation. “If somebody asserts [the privilege], the House could lock that person up in the House of Representatives detention facility.” Kendall notes, however, that he’s not aware of that happening. The parties usually negotiate a nonwaiver agreement that allows a witness to testify about specified matters, with the House agreeing that it won’t assert that the witness has waived the privilege on all matters. Paul, Weiss’s Fagen says he negotiated with congressional staff which topics he would discuss. But even a nonwaiver agreement creates risk. “The danger with that,” said Kendall, “is that [the agreement] is not binding on third parties.” California Attorney General Bill Lockyer, for example, could assert that Sonsini or Baskins waived the privilege by testifying. Another possible problem for Sonsini and Baskins is the so-called crime-fraud exception to the attorney-client privilege. Under that doctrine, the privilege is invalidated if a client used a lawyer to commit a fraud or crime. “The conduct would have had to have broached the possibility of criminal conduct,” said Deborah Rhode, a Stanford Law School professor. If so, Sonsini and Baskins would clearly not be bound by privilege, she said. She adds that it doesn’t matter whether they had criminal intent, or whether they were responsible for any crime. Susan Beck is a senior writer for The American Lawyer. Her e-mail address is [email protected] Justin Scheck is a Recorder reporter. His e-mail address is [email protected]

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