The task of any lawyer mirrors closely that of an effective intelligence worker - Pitting known parameters against what might happen on a balance of best probability. At any given time the lawyer has to sort out often complex client requirement against an existing body of law.  Contrary to what many might think this is not an absolute or open and shut process. Not only is client circumstance subject to contextual interpretation, but also constantly evolving global, national and regional bodies of law. Similarly eventual interpretations of both by opposing counsel, prosecutors, judges and juries add to the uncertainty of outcomes.

The ability of a lateral-thinking lawyer to inhabit the world of mights and maybes allows for the accurate anticipation of future legal interpretation and enables a powerful and strategic legal strategy that might or might not work. This is in essence what intelligence is all about. Roughly defined intelligence or foreknowledge comprises a series of clues that give rise to a theory that predicts future trends or events on a balance of best probability. Clearly this would be a challenge for most in the current era of absolutism and zero tolerance that calls for impossible certainty.

The Conrad Black prosecution is a case in point. The post Enron, WorldCom & 9/11 climate that resulted in the political clamour for accountability, transparency and certainty as well as the advent of the onerous Sarbanes-Oxley Act, made it clear that the legal interpretation of what constituted best business practice would change.

Legal advisors in this mind space, aware that the time of autocratic CEO’S and boards of directors was past, would have long ago warned clients to clean house and at very least to engage in drama that would sate shareholder and public thirst for transparency. I am almost certain that Conrad Black and the Hollinger crew had no criminal intent. Their notion of impunity and business practice was so entrenched, that they proceeded with business as usual. Perhaps the greatest public damage to Black was the media coverage of him removing his own property from his former office.  Did he have any idea that this would be interpreted as a criminal act? Similarly the Martha Stewart conviction was a milestone in the new legal, business and political climate. How many of us have acted on insider information and lied about it without sanction, just because it was considered the common practice of the time? Did Black or Stewart have any notion of wrongdoing? Did they or their legal advisors, in good time, factor in a political trend that was determined to send a clear message that times had changed?

The spike in what we refer to as Corporate Espionage is another dimension that brings the legal world head on into the world of intelligence. Espionage is in effect illegal or unethical gathering of data or information that its owners would prefer to keep hidden. The legal question then is what is legal or illegal. Technology has advanced to such a point that the individuals and corporations can spy on competitors, industry members and even their own employees just because they can. The Hewlett Packard scandal where the uproar over the telephone probe scandal and the subsequent resignation of Chair, Patricia Dunn brought the question of what constitutes ethical intelligence gathering home to the business world. The legal focus was on the justification of internal spying in safeguarding critical corporate information, raising the debate of justifiable versus legal spying. In the absence of clear legislation it could not be proved that Dunn and company had acted with criminal intent.

Another good example was the Air Canada/West Jet saga that if it had not been settled out of court, might have provided useful precedent. The case involved not only consideration of direct procurement of information via intimate knowledge of competitor Information Technology, but also the potential privacy invasion infractions involved in investigating whether spying had indeed taken place. In the US, the terms of the federal Economic Espionage Act (the EEA) and certainly in Canada the provisions of the Personal Information Protection and Electronic Documents Act (PIPEDA) and the Telecommunications Act are clear that fraudulently obtained information is illegal. As the law stands, full prior disclosure is required unless the parties involved have signed prior waivers or agreements to the contrary.

The law however may be interpreted widely if disclosure compromises accuracy; for example, private or judicial investigators cannot be expected to announce their investigation. If one considers the rise in the use of the Anton Piller remedy that allows authorized civil search and seizure procedures, the boundaries become even more tenuous.

Both cases broadly illustrated the absence of clear legal guidelines and precedent as to how lawyers should guide and defend their clients. The advance of the ever evolving Competitive Intelligence industry, largely technical in nature, adds to the confusion. Will legislation alone ever succeed in defining what constitutes an offence? Interestingly Jason Kirby in his very pertinent article in MacLean’s, (July 2nd 2007) When the Spies are out of Control makes the point that at present only “being caught” turns “smart business into malfeasance”.

Until such time as legislation catches up with reality, the subjective input of each individual lawyer will be vital in guiding clients through the minefield of what future interpretation will be. For my part the age old adage of “…do unto others as you would have done unto yourself…” is perhaps the safest advice that can be given.