Falsehoods and Duty of Confidentiality
What is an e-forensics specialist to do when she discovers her client has been lying to her? Typically this kind of computer specialist is hired to find, audit and report on electronically stored information (ESI). If the specialist has been making representations to others -- such as a court, an internal investigator or an inspector general who has issued a subpoena, on the basis of what she now knows to be lies, she is in a bind. Like any professional working for a client on a sensitive matter, the specialist will likely owe the client a duty of confidentiality. Normally she will have signed a non-disclosure agreement.
How to Preserve Reputation?
The specialist’s reputation is at stake. Obviously, to disassociate herself from misrepresentation, she can withdraw from the engagement. But she fears that the third party will continue to rely on her representations, which are no longer well-founded.
A practical technique available to this specialist is known as the noisy withdrawal. Although noisy withdrawal is most commonly known from cases where lawyers learn that their clients have been lying to them, the technique is a responsible measure available any ethical professional.
In a noisy withdrawal a professional announces that he is withdrawing from representation of his client. In addition (this is the noisy part) he declares to interested third parties that he disaffirms his prior statements made on behalf of the client. With the noisy withdrawal, the professional aims to preserve his own credibility, without compromising the client’s secrets. He does not reveal why he is withdrawing, why he is disclaiming prior statements or any information his client has told him.
Examples of Noisy Withdrawal
A recent example of a noisy withdrawal occurred in the investigation of Stanford Financial Group. Attorney Thomas Sjoblom had represented the firm before the Securities and Exchange Commission as it examined alleged fraud, corruption and irregularities. But then he made a noisy withdrawal from the engagement. Observers surmised that as the case progressed he had come to disbelieve what his client had been telling him. Kara Scannell, “Top Lawyer’s Withdrawal from Stanford Case Waves a Flag,” Wall Street Journal, Mar. 6, 2009.
Another famous example transpired in the Whitewater investigation during the Clinton presidential administration. Legendary ethics expert Sam Dash made a noisy withdrawal when the Whitewater Independent Counsel wrongly gave the impression that Professor Dash endorsed the Counsel’s conduct. (By the way, prior to this story, the late Sam Dash was my ethics professor in law school. Over the long run, I hope Professor Dash’s teaching helps me stay out of trouble!)
Mr. Wright teaches cyber defense law at the SANS Institute, where he emphasizes the role of ethics and savvy public communications.