Decent investigators and journalists everywhere ought to have been outraged at news over the weekend in the Wall Street Journal that appears to have caught a corporate investigator masquerading as a Journal reporter.

According to the story, the person trying to get information about investment strategy and caught on tape pretending to be someone he wasn’t was “Jean-Charles Brisard, a well-known corporate security and intelligence consultant who lives in Switzerland and France.”

Fake news we know about, but fake reporters? It’s more common than it should be. Free societies need a free press, and for a free press to work people have to be able to trust that a reporter is who he says he is.

Good investigators working for U.S. lawyers should not pretend to be someone they are not – whether the fake identity is a journalist or some other occupation. Whether or not it breaks a state or federal impersonation statute, it’s probably unethical under the rules of professional responsibility.

Consider Harvey Weinstein’s army of lawyers and their investigators. The evidence was presented in Ronan Farrow’s second New Yorker piece on Weinstein that hit the web last night. The story says that Weinstein, through lawyer David Boies, hired former Mossad agents from a company called Black Cube.

“Two private investigators from Black Cube, using false identities, met with the actress Rose McGowan, who eventually publicly accused Weinstein of rape, to extract information from her,” the story says.

It goes on to explain that one of the investigators used a real company as cover but that the company had been specially set up as an empty shell for this investigation. The name of the company was real, but its purpose was not (it was not an investment bank). Worse, the investigator used a fake name. Courts have said this can be OK for the agents of lawyers if done in conjunction with an intellectual property, civil rights or criminal-defense matter. This was none of these.

The journalism aspect of the Weinstein/Black Cube investigation is (if accurate) just as revolting, involving a freelance journalist who was passing what people said to him not to a news outlet but to Black Cube. This produces the same result as the Brisard case above. Why talk to a journalist if he a) May not be a journalist or b) Will be passing your material on directly to the person he’s asking you about?  The freelancer in question is unidentified and told Farrow he took no money from Black Cube or Weinstein. Volunteerism at its most inspiring.

And where were the lawyers in all of this unseemliness? Boies signed the contract with Black Cube, but said he neither selected the firm nor supervised it. “We should not have been contracting with and paying investigators that we did not select and direct,” Boies told Farrow. “At the time, it seemed a reasonable accommodation for a client, but it was not thought through, and that was my mistake. It was a mistake at the time.”

Alert to lawyers everywhere: it was a mistake “at the time” and it would be a mistake anytime. Lawyers are duty-bound to supervise all of their agents, lawyer and non-lawyer alike. When I give my standard Ethics for Investigators talk, ABA model rule 5.3(c)(1) comes right at the top, as in this excerpt from my recent CLE for the State bar of Arizona:

A lawyer is responsible for a non-lawyer’s conduct that violates the rules if the lawyer “orders or, with the knowledge of the specific conduct, ratifies the conduct involved.”

“Ratification” can in some cases be interpreted as benign neglect. An initial warning “Just don’t break any rules” won’t suffice. The nightmare scenario is the famed Winnie the Pooh case in California, Stephen Schlesinger, Inc. v. The Walt Disney Company, 155 Cal.App.4th 736 (2007).

Schlesinger’s lawyers hired investigators and told them to be good. Then the investigators broke into Disney’s offices and stole documents, some of them privileged. The court not only suppressed the evidence, but dismissed the entire case. Part of the reasoning was that Schlesinger’s lawyers, after that initial instruction, did no supervising at all.

Black Cube may not have committed any crimes, but appears from the facts in the story to have gone over the ethical line in pretending to be people they were not. Boies (or any other lawyer in a similar position) should have tried to make sure they would do no such thing. What Black Cube did was everyday fare for Mossad, the CIA and MI6, but not for the agents of U.S. lawyers.

Clients often ask us whether we tape-record phone calls we make in the course of an investigation. Our brief answer is, “never.” Here is why:

  • Recording could be illegal.

Some states allow tape recording conversations if one of the two people in the conversation is aware that a tape is rolling, but some require that both parties be aware. These include California, Florida, Illinois, Pennsylvania, Massachusetts, Connecticut and several more.

tape recorder.jpgWhat’s the problem with deciding you’re in a one-party state, calling up someone and letting the tape roll? Say the person you are calling has his phone forwarded to a two-party state. Even if you think you are calling someone down the street from you, how are you to know the phone isn’t ringing in Miami or L.A.?

  • Even if legal recording could be construed to be unethical for lawyers. Since we are lawyers, we pay the same close attention to the ethical rules as our clients do.

In a wonderful story in the current issue of the ABA’s Litigation News, (website here but current issue not on line yet), the ABA’s Lisa R. Hasday delivers a thorough  survey of the various ethical rules that govern phone recording. In short, it’s a minefield out there and any decision to tape is one that our clients would need to approve only after some serious reflection and research.

The one-party states fall into four categories.

  1. Surreptitious recording is not unethical  in Texas, Tennessee, North Carolina, Minnesota and a variety of other states. Of course, the same problem as avoiding a two-party state applies: a person sitting in Dallas calls a Houston number with the tape rolling, but the Houston number is answering the call in Orlando. Potential problem.
  2. Surreptitious recording is unethical except in certain circumstances in New York, Virginia, Colorado, Kentucky, Indiana and a few other states.
  3. Surreptitious recording is evaluated on a case-by-case basis in Arizona, Michigan and Wisconsin.
  4. Some states have no position on surreptitious recording. These include Georgia, New Jersey, Nevada, Louisiana and Arkansas, among others.

What’s the big deal courts make of taping when legislatures say it’s OK? It stems from ABA Model Rule of Professional Conduct 8.4(c) which has been adopted in most states, and says that lawyers commit professional misconduct if they “engage in conduct involving dishonesty, fraud, deceit or misrepresentation.”

According to Hasday’s article, “courts have almost uniformly determined whether secret recording is misconduct based on additional facts surrounding the recording and not merely on the fact of the recording itself.”

The cases in which secret recording is most likely to be allowed involve the limited categories that have allowed attorneys to tell lies in the course of their duties: investigations into intellectual property infringement, housing discrimination, and for a lawyer’s self-preservation.

  • A recording could be legal and ethical, but is it admissible?

The decision to record a phone call is one that should be among the most heavily researched and carefully considered of the thousands of decisions a lawyer makes during the course of a matter. Even then, getting the recording admitted as evidence presents its own set of problems of authentication.

What kind of recorder is it? Is the operator competent? Were there any changes made to the recording? Are the speakers on the call identified? Did they speak without inducement?

Sometimes, making a recording of a phone may be a make-or-break decision in a case. But in our experience, recording has never been important enough to risk breaking the law, professional sanctions, and failure to get the material admitted.

 

A wonderful new book called The Half-Life of Facts by Samuel Arbesman makes riveting reading for anyone in the business of gathering information. Don’t let the fact that the author is an applied mathematician scare you off.

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Arbesman keeps his examples mostly in the realms of science and general knowledge, and leaves the law alone. But this is a book for litigators, transactional lawyers doing due diligence, evidence mavens, and of course those of us who gather facts for a living (and teach law students how to do the same).

One of the book’s themes is that we don’t know as much as we think we do, for a whole bunch of reasons that resonate with us and some of our previous writing, including:

  • Things just change: information goes out of date (measured by half-life). It’s human nature not to want to recognize that. Arbesman reviews the “Semmelweis Reflex,” “the tendency to ignore information simply because it does not fit within one’s worldview.” This is related to its converse, confirmation bias, “where you only learn information that adheres to your worldview.”

The worst thing an investigator can do is to pre-suppose what he will find before looking at all the evidence. We talked about this in Avoiding Due Diligence Failure: Follow Up on All Red Flags. And while the Semmelweis Reflex is often at work, Arbesman says, “our blindness is not a failure to see the new fact; it’s a failure to see that the facts in our minds have the potential to be out-of-date at all.”

  • Information hides in plain sight. Knowledge is highly specialized and specialists don’t communicate among themselves. Arbesman’s father, a dermatologist, unearthed an old article about ALS (Lou Gehrig’s Disease) that made reference to an absence of bedsores in observed patients. He then came up with a way to measure the disease’s progression (something that had eluded researchers) by looking at the elasticity of the skin.

            We aim to make the same kind of connections in our work. What companies does a person own?  Some places allow you to look up companies by shareholders and directors, but some don’t. We look not just at a company registry but at who owns that person’s home and office. If it’s a company, we look up who appears to control that company by using a variety of records and techniques. Many investigators and most automated databases fail to connect the facts that John Smith owns a company, and that company owns the house John Smith lives in.

  • Lazyness (or more politely, overwork). One study Arbesman cites concludes that 80 percent of scientists who cite an article in their paper have not actually read the article cited.

 In “Good Investigations: A Second Opinion on Most Everything,” we wrote about the need to do our own interviews rather than rely on newspaper articles that contained possibly error-filled transcriptions.

             The book is packed with lots more such material, though it’s far from just a catalogue about how shallow and dumb people are. On the contrary, another theme is that we are extraordinarily resourceful, and the more people who look at solving a problem, the more likely that problem is to be solved.

             By being aware of all the ways we neglect changing facts, we can be even brighter.

GettyImages_84080791.jpgIn September 2011, Gauss, a new malware described by the tech-press “as a cyber-espionage tool kit” emerged from the Middle East.  Gauss steals highly sensitive data, including browser passwords, online bank accounts as well as cookies and system configurations.  Gauss closely resembles the malware Flame and Stuxnet, which according to Kaspersky Labs, were created in state-sponsored factories.  Consequently, analysts believe that it too might be state-sponsored.  Since its debut, Gauss appears to have infected 2,500 machines worldwide.  However, the total number of victims may actually be much higher, in the realm of tens of thousands. 

And that number could just keep growing.  Shortly after Gauss was discovered in June 2012, its command and control infrastructure was disabled.  This may sound like a victory, but it is actually far from the truth.  As tech journalist Larry Dignan explains on Cnet.com, the Gauss “malware is dormant waiting for servers to become active.” In other words, it may continue to wreck havoc.

Admittedly, this sort of thing—state-sponsored hackers breaking into bank accounts— could keep one up at night.  What is interesting from an investigative point of view, however, is the way that computer scientists have figured out how to root out the Gauss malware before it causes harm.  Apparently, computer scientists have determined that the font Palida Narrow is used during a Gauss cyber attack.  Therefore, programs designed to detect Gauss check for that particular font to help determine whether the malware is in fact present and needs to be rooted out

To be clear, the font does not cause the theft to occur.  Instead, its presence merely correlates with the malware that does.  It is an indirect and yet highly elegant and quick way to detect whether a problem may exist.

As investigators, we can’t always get exactly to the evidence we want to prove.  Sometimes it merely doesn’t exist.  Often, ethical and legal constraints keep us from being able to obtain the facts we definitively need to prove what we are investigating. 

It’s easy to get lost searching for the unsearchable, pining for that one nugget that will help everything fall into place.  But investigators don’t have that luxury. 

So, we sometimes have to do what the computer scientists have done by pinpointing a font as a sign of trouble: We have to take a step back and look for clues elsewhere.  This may mean getting off one path and onto another. For instance, we may not have direct evidence of wrongdoing, but we can scour the evidence in order to detect patterns that suggest wrongdoing.  Alternatively, we can review the facts to see if we can find any that correlate with what it is we’ve been asked to help prove or disprove.

This is not about making assumptions—we never say that because x exists, therefore y.  Instead, it is about being able to look for solutions that advance our clients’ knowledge, even if they fall short of the ideal solution.  

Good investigators are not necessarily smarter than the people they help. What often makes a good investigation is one in which “known” facts are independently evaluated once again.

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Just as we sometimes want a second opinion on a complex medical or legal matter, gathering and weighing the credibility of facts can also benefit from a fresh pair of eyes.

The recent article by Jack Hitt in The New Yorker called “Words on Trial” explores the field of forensic linguistics. Famous for figuring out the identity of anonymous authors (as in the case of “Primary Colors”), or threatening notes based on word patterns and other signs, this field also looks at the apparently plain meaning of a transcribed phrase and whether or not the phrase could mean the very opposite of what’s printed on the page.

In one case described in the article, “I would take a bribe, wouldn’t you?” on the transcript could also have plausibly been “I wouldn’t take a bribe, would you?” and resulted in a hung jury. Another controversy was whether a transcribed “No, she didn’t” may have been “Sure, no, she did.”

All the more reason to interview people if you can, rather than rely on the reporting of others. We’ve repeatedly stressed the value of doing your own interviews in other entries, including “The Key to a Good Interview is Silence” and “Talk Isn’t Cheap, Even When Offline.”

Beyond the ability to listen and to tease out meaning, a second look at information can help because people are sometimes irrationally disposed to put too much or too little weight on one source or another. We’ve written in our “Fact Finding Test for Lawyers” about the inordinately heavy amount of trust people put into a Google Search.

Now comes a study from Penn State Professor Mike Schmierbach and Ph.D. candidate Anne Oeldorf-Hirsch that claims “a New York Times story posted on the newspaper’s website was seen by respondents as more credible than when the same story was posted on the newspaper’s Twitter feed.” This makes no sense because the Twitter feed links to the supposedly more trustworthy website.

But it does beg the question: how many times a day do we put the wrong amount of trust in a quotation, a statistic, an asserted fact or other piece of information?