It appears News International have waived confidentiality to permit Harbottle & Lewis to talk to Parliamentary Commitees and the Police. There appears to be some doubt about the terms of that release (the Lawyer reports it in the following terms for instance):
However, on Wednesday evening, a statement, understood to be issued by parent company News Corp’s newly installed management and standards committee, released Harbottle from its obligations, allowing the firm to talk to police and parliament about the exact remit it was given by NI when it was instructed in 2007.
I have blogged previously on the background to this here. This is not such a noble act on their part. I am advised (hat tip to Carl Gardner) that according to Erksine May, parliamentary privilege permits the overriding of legal professional privilege. There is a fairly decent argument that privilege has been impliedly waived anyway by News International’s release of and comment upon the Harbottle advice and, in any event there may also be arguments as to whether privilege arises in the first place, in particular whether advice has been used by the client to further a criminal purpose.
Of further interest is whether similar releases have been, or will be, provided to Lawrence Abramson (who provided or oversaw the advice to News International from Harbottle & Lewis) and Jon Chapman (NI’s in-house lawyer also apparently implicated by News International and reportedly waiting in the wings to defend himself). If, as seems likely, these are the two actors best placed to give evidence on the instructions and the advice then it is them that Parliament and the police need to hear from.
Nevertheless it releases Harbottles from a tricky situation. They do not take the reputational hit of being seen by clients to breach confidentiality (hat tip 2 to Tim Bratton for this point) and it enables them to explain their actions. “Sources” are being reported which indicate that they will be indicating that their instructions were narrower than they have been indicated to be. In particular, one suggestion is that they may have been advising only on whether there was evidence of hacking and not on whether there may have been broader illegality (such as paying a police officer for phone numbers – though of course one is bound to ask what those phone numbers were to be used for – perhaps it was garden party invites).
Their letter indicated that their review had been confined to reviewing emails from Andy Coulson; Stuart Kuttner; Ian Edmondson; Clive Goodman; Neil Wallis; Jules Stenson. That is there may have been other material which their advice did not apply to and their advice may have been correct within the terms on which it was sought. They went on to say:
I can confirm that we did not find anything in those emails which appeared to us to be reasonable evidence that Clive Goodman’s illegal actions were known about and supported by both or either of Andy Coulson, the Editor, and Neil Wallis, the Deputy Editor, and/or that Ian Edmondson, the News Editor, and others were carrying out similar illegal procedures.
The letter refers only to illegal actions, not hacking but the correct interpretation of those words (in terms of understanding what News International understood the letter to mean) will depend in part on the instructions they were given. It may also be important to understand what the Harbottle & Lewis lawyers understood their letter would be used for. Was the audience to be Jon Chapman,the Editor, an executive group in the News of the World, the Board of News International (or parent companies), interested third parties? We do not yet know.
There are broader questions that may be raised by the process. Defining a narrow inquiry, calling in external lawyers to conduct that inquiry, and using positive findings to provide deniability was a tactic used, for example, in Enron. Using professional advisers to sanitise difficult situations is far from unheard of as is providing a ‘public’ opinion letter and a private advice. It remains to be seen whether that is the explanation for events here. There is an interesting question as to whether this is professional whitewashing or sophisticated advice to sophisticated clients. Furthermore, it raises interesting ethical dilemmas. In particular, it pitches the lawyer’s duty to their client in direct opposition to the duty to the public interest, and especially to the public interest in the administration of justice.
For lawyers who participate in such processes there are two particular questions that need to be asked. One is whether they should allow themselves to be restrained by narrow instructions from their client. There are arguments in both directions but also some authority that when:
a professional man like a land agent or a solicitor learns of facts which reveal to him as a professional man the existence of obvious risks, then he should do more than merely advise within the strict limits of his retainer. He should call attention to and advise upon the risks. (Boyce v Rendells –  2 EGLR 146 )
It seems to me Harbottle’s need to be asked whether they perceived obvious risks, outside of phone hacking, whether they advised on them and if they did why they were not included in the letter disclosed to the Select Committee.
There is a second broader issue about how accepting such instructions fit with a solicitor’s duty to protect the public interest in the administration of justice (and indeed the integrity of the profession). Where a lawyer forsees a significant likelihood of their advice being used for the purposes of providing deniability in a way that is misleading then there is a plausible case that they should either decline to act or frame their advice so as to prevent the potential for it to be misused. They risk the perception of complicity and they also risk breaching professional obligations not to take advantage of third parties on the client’s behalf. I should reiterate that it is too early to be clear that this is the situation here. Harbottles are keen to defend themselves and we must await their explanations with interest.
Postscript: there’s some further interesting information reported in the Guardian here.