Why Do Lawyers Acquiesce In Their Clients’ Misconduct? – Part I

Ann Baskins before Congress

What the many recent corporate scandals (including Enron) have shown is that lawyers are often involved in the process that ultimately enables their clients to break the law. Take, for example, the recent scandal of the Hewlet-Packard spying fiasco:

“On September 28, 2006, a visibly exhausted Ann Baskins stood before a congressional committee investigating the Hewlett Packard spying scandal. Standing before the committee, Baskins, who had just resigned as general counsel, raised her right hand and swore to tell the truth. Then, on the first question, Baskins exercised her Fifth Amendment privilege against self-incrimination. While Baskins sat mute nearby, the former Chairwoman Patricia Dunn and HP CEO Mark Hurd told the committee that Baskins was to blame for the spying fiasco. They accused her of rendering bad legal advice and claimed that Baskins knew about and permitted the use of “pretexting” – using false pretenses to obtain others’ personal information from telephone companies.” [quoted from my work-in-progress, Gatekeepers Inside Out]

Of course, the story isn’t over. We do not know to what extent Ann Baskins, a respected attorney, actually “knew” that pretexting was over the line. And, of course, as a matter of criminal law, she is innocent until proven guilty. My point is not to accuse her of any legal wrongdoing.

But this scandal begs the question: how could such a capable general counsel not have prevented the pretexting? After all, there is evidence that on six separate occasions, Baskins questioned whether “pretexting” was legal. Journalistic accounts so far suggest that Baskins never pushed for a definitive answer about whether the methods used were, in fact, legal. Why not? Certainly, the red flags were there. The same kinds of questions have been posed about Mark Belnick, star litigator and former general counsel of Tyco, who sat by while the Tyco CEO Dennis Kozlowski was looting the company. (Belnick was ultimately acquitted in 2005 by a New York jury of criminal charges after five days of jury deliberation.)

I think the answer to this “puzzle” is a complicated one but one that can only be answered adequately by focusing on the entire situation of lawyers like Ann Baskins or Mark Belnick. The reality is: there are enormous psychological pressures to acquiesce – whether that means to turn the other way or to refrain from pressing the “issue” or to be prematurely satisfied by an easily available explanation (rationalization) that makes unethical/illegal conduct seem, well, not so bad. These psychological pressures arise from their roles as employees (subject to “obedience” pressures), faithful agents (subject to alignment pressures) and team players (subject to conformity pressures). I discuss these pressures in my article, The Banality of Fraud: Re-Situating the Inside Counsel as Gatekeeper, and plan to discuss them in greater detail in a later posting.