Introduction
The legal profession occasionally encounters situations that raise serious ethical questions regarding the appropriate boundaries of client advocacy and the use of investigatory tactics. A notable instance involved the law and lobbying firm Hunton & Williams (now Hunton Andrews Kurth LLP) and its relationship with subcontractors who proposed using aggressive, covert methods against critics of the firm’s clients, specifically Bank of America and the U.S. Chamber of Commerce.
The Nature of the Proposed Tactics
The controversy centered on proposals submitted by subcontractors for a plan reportedly dubbed “Project Themis.” These proposals allegedly outlined hardball and covert tactics aimed at discrediting or neutralizing the clients’ critics. One particularly concerning element of the proposals, as reported in various legal publications, included “the identification of vulnerabilities in critics’ computer networks that might be exploited.”
Ethical and Legal Scrutiny
The critical question raised by legal ethics commentators, including those on the Legal Ethics Forum (such as Brad Wendel), the BLT (Blog of the Legal Times), and Above the Law, focused on the extent of Hunton & Williams’ knowledge of these proposed actions and the timing of that knowledge.
The discussion quickly turned to the ethical obligations of a law firm when confronted with such highly questionable proposals. As noted by Above the Law, the immediate assessment suggested that, based on available information, “it doesn’t seem like Hunton actually accepted or endorsed any of these tactics.” Furthermore, initial reports indicated that neither Bank of America nor the U.S. Chamber of Commerce appeared to have been aware of or given approval to “Project Themis,” a lack of knowledge that would shield the clients from direct legal liability or “fall-out.”
Analysis of Professional Judgment
While the firm’s potential non-acceptance of the tactics provides a degree of insulation from liability, the mere suggestion of such tactics raises a separate question regarding professional conduct and judgment. The fact that the subcontractors—who presumably had some understanding of the firm’s culture or potential needs—felt comfortable proposing aggressive, potentially illegal, or unethical measures presents an anomaly. If the firm was certain to be shocked and dismayed by the tactics, the question remains: why would the subcontractors have anticipated a receptive audience for such proposals?
This scenario underscores the need for law firms to maintain clear, uncompromising ethical boundaries and to ensure that all vendors and subcontractors understand that client advocacy must operate strictly within the bounds of the law and professional conduct rules.
