If you haven’t seen the amusing and disturbing piece in the Wall Street Journal this week about Black Cube, the band of former Mossad (Israeli secret service) agents, it’s worth a look.
The article explains that Black Cube’s people run around the world pretending to be people they are not, in order to investigate private, commercial or legal matters for high-paying clients. It recounts a series of foul-ups, blown cover identities, arrests and other problems with Black Cube’s operations, which make for interesting reading.
For this blog’s purposes, the most interesting part was the question of whether lawyers ought to use Black Cube. On this question, the article is not of much help:
Private investigators have long resorted to a form of deception known as “pretexting” to gather information in corporate or personal disputes. Most developed countries prohibit impersonating people to obtain private information such as phone, bank or medical records, but using assumed identities can be legal in other contexts. Such deceptions are critical to how Black Cube operates.
What struck us about the article is that while it explored what investigator conduct is legal, the issue of what is ethical was left for another day. For lawyers, that is just as important as the question of legality, but the words “ethics” or “ethical” don’t even make it into the story. That is a pity for any lawyer hoping to learn from the article whether Black Cube is a good candidate for any job.
Black Cube has been in trouble before, and we’ve written about them in connection with what they did on behalf of Harvey Weinstein, in The Weinstein Saga: Now Featuring Lying Investigators, Duplicitous Journalists, Sloppy Lawyers.
There, we argued that lawyers are bound by professional rules that require not just behaving legally, but ethically as well. Not only that, but agents of those lawyers – anybody the lawyer hires to do work for the lawyer – need to follow the rules too. Lawyers have an ethical duty to supervise their agents.
When it comes to pretexting, we take the position that no agent of a lawyer in the U.S. should be lying about his identity. Courts have carved out narrow exceptions for criminal defense and intellectual property work, but for background checks, commercial disputes and anything else a lawyer needs help with, pretexting should be out.
What happens if you get caught? You risk professional discipline, but there’s more: In the past two years, two federal judges in the Southern District of New York have thrown out evidence gathered unethically by investigators.
We often give thanks for robust government intelligence services that do the dirty work on behalf of their countries. U.S. spies in World War II gathered invaluable information about the Nazis and Japan, and later on the Soviet Union. Anyone who likes the idea of a strong Israel should understand that the Mossad is vital to that country’s survival.
A former CIA operative once said to me, “If I wasn’t breaking the law of the countries I was posted to while I was working for the CIA, I wasn’t doing my job.”
Breaking laws is not what lawyers in the U.S. (and their agents) are supposed to do. If you want to be a spy, take the entrance exam at Langley.