Ethical Minefields of Law Firm Competitive Intelligence
A lawyer writing in the National Law Journal is urging state bars to set standards for law firms gathering competitive intelligence before an embarrassing example comes to light and damages the reputation of the legal profession.
The article by lawyer Melissa Ruman Stewart of Winstead outlines ethical quandaries posed when law firms gather information about competitors, potential clients and market opportunities.
Some examples: Should lawyers use information that a target client wouldn’t want disclosed, such as home values, criminal history, religious affiliations, school affiliations, civic affiliations and taxes? Should a lawyer enroll her children in a target child’s Sunday school class in an effort to learn more about the target? Should estate planners send letters to possible cancer patients whose names were purchased from wig vendors? Should a lawyer keep his profession secret in a public setting when others are talking about a competitor’s proprietary information?
Lawyers may find little guidance in state ethics codes. The most relevant regulations usually deal with advertising rather than competitive intelligence, Stewart says. Besides consulting ethics regulations, she says, lawyers must of course obey the law. They can’t misrepresent themselves to obtain information and can’t use competitive intelligence to bribe or blackmail.
But there are many unresolved questions that should be addressed by the states and law firms’ own ethics guidelines, she says.
Stewart notes that the Society of Competitive Intelligence Professionals has a code of ethics but it doesn’t address the gray areas. A good rule to follow, she says, is the “gut check” public disclosure test: Would the gathering of the information prove embarrassing if it were made public?
