Nell Minow [Editor and Co-founder, The Corporate Library]: "The board of Hewlett-Packard, a serial offender with a record of colossal poor judgment in the selection, overpayment, and departure package of CEO Carly Fiorina and in its massive mishandling of the fight over the Compaq merger, leapt from the frying pan into the fire when it tried to clean up its act. The most fundamental requirement for board effectiveness is trust, the ability to communicate in an atmosphere of candor and confidentiality. When a director chooses to leak proprietary information about strategic deliberations, including possible acquisitions, it damages the company's ability to plan and compete and destroys the ability of the board to function in any capacity.

What is a chairman to do under those circumstances? Any list of best practices would advise the chairman to first speak to each director and see if the leaking director wanted to confess, explain the rationale, and re-commit to the company's confidentiality standards. If that was unsuccessful, the next step would be to retain an independent outside firm to investigate. A chairman would have to obtain assurances that the investigation would comply with the law, but the chairman would also not be permitted to delve too deeply into the specifics of the investigative techniques to ensure that there was no special treatment; the credibility of the investigation would depend on treating all of the directors as potential suspects. Prudence might require an outside certification of the legality of the procedures from counsel.

This is pretty much what happened. Pattie Dunn should not have tried to avoid responsibility. Her argument that a "Clever" email response to a proposal to trick a reporter by creating a fake leaker was not approval, just a comment, because she had no line authority as Chairman of the board, was disingenuous. But it was not a felony, and I predict a settlement of the pending charges. CEO Mark Hurd has handled the situation as well as possible, accepting responsibility, providing clear, candid assessments of what went wrong, but subtly providing perspective to remind investors, employees, legislators, and regulators that this was a small, contained problem with no connection to financial disclosures or product safety that was quickly identified and corrected.

The people who deserve the blame here are the lawyers. Now-departed (with a generous severance package) General Counsel Ann Baskins and senior counsel and ethics(!) officer Kevin Hunsaker permitted the "pretexting" and fake leak initiatives. Outside counsel Larry Sonsini's email exchange with a departed director neglected the single most important threshold question for any lawyer: "Who is my client?" His "investigation" into the legitimacy of the inquiry consisted of asking the very person he should have been double-checking. The real disgrace in the Hewlett-Packard mess is the failure of the people the executives and board members relied on to provide the kind of counsel that is the core responsibility of members of the legal profession. "Pretexting" is fraud and should be illegal. But worse than any "pretexting" to obtain phone records was the pretense that the clients here were getting adequate and appropriate and honorable legal advice."