This fact (nicely analyzed by White Collar Crime Profs Blog) is too much. In class I often use the image of the ethics ostrich (which I can no longer remember whether I thought up or lifted from someone else) to describe people who stick their heads in the sand to avoid actual knowledge. There are good Friendly and Posner opinions on why this doesn't work. But to stick your head in the sand after acquiring knowledge? Geez.
Maybe the lawyer in question took some unreported action to verify the legality of this practice. One hopes.
Note to self: "I shouldn't have asked" looks bad.
DM
As of now, all we know from that one fact is that when the lawyer saw something that struck him as odd he asked about it.
BTW, that fact tends to negate much what I've seen in the blogosphere about this matter, because it tends to show that (1) the inhouse lawyers didn't know about the pretexting beforehand and (2) by reasonable inference, neither did the company's outside corporate counsel.
Posted by: John Steele | September 21, 2006 at 10:58 AM
I am less sanguine on this one. If you know you have call records, or that your investigator plans to get them, you have to know that something is going on other than an investigator callling the phone company, truthfully identifying himself, and asking to see someone else's records. The nature of the information is (at least I hope it is) notice enough to inquire.
Which, as you point out, is what happened. And as I said, "I shouldn't have asked" might not be the end of the story. But if it is, it is not much better than ex ante blessing of the tactics. Even if lying about your identity to get phone records is not a crime (why isn't it wire fraud, by the way?), it would be an invasion of privacy, I would think, and blessing or ignoring an intentional tort seems problematic, too, though of course less so than if a crime is at stake.
DM
Posted by: David McGowan | September 21, 2006 at 07:09 PM