“I shouldn’t have asked….” = Wrong Answer

Another email exchange has emerged in the HP pretexting investigation, this time between HP’s “Chief Ethics Officer” (CEthO) and a line manager from January 30:

CEthO: “How does [the PI] get cell and home phone records? Is it all above board?”

Line manager: the PIs “call operators under some ruse…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.”

CEthO (entire response): “I shouldn’t have asked….”

Offhand, I can’t think of a single situation where “I shouldn’t have asked” is an appropriate response from a CEthO. In any situations where a client’s response makes the CEthO uncomfortable, the right response is “I’m glad I asked” because the CEthO can then proactively implement remedial steps to ensure conformance with good ethical practices (regardless of minimum legal standards).

Stated differently: inevitably, in-house counsel will look under a rock and find some worms. Sometimes, the only logical course of action is to put the rock back down and try to ignore the worms. However, I don’t see “returning the rock” as a viable option for a CEthO–I think the entire organization depends on a CEthO to attack the tough topics that everyone else would prefer to avoid.

This exchange also illustrates how bad corporate practices can continue for years, even if they are not legal or ethical. As you can see, the line manager’s response was basically–we lie all the time. This systemic lying becomes self-reinforcing. Each new person who confronts the practice must wrestle with the weight of precedence, conclude that everyone who previously evaluated the practice was wrong, and have the courage of convictions to stand up and say that they reject the status quo. Few people have enough self-confidence to believe that their analysis is more accurate than others and the courage to act on it. Instead, people often back away, rubber-stamping bad practices by inertia.

I have not yet figured out how to overcome this tendency. At minimum, I think we need better payoffs for those with the courage to reject industry-standard bad practices, and worse payoffs for those who defensively rely on the cover of industry standards to perpetuate bad practices.

UPDATE: The White Collar Crime Profs Blog and David McGowan at Legal Ethics Foruim some similarly dim views of this email exchange.

UPDATE 2: This appears to have been a career-limiting response by the CEtho.

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