Facebook, MySpace and other Social Networking Sites (SNS) are rich sources of incriminating, exculpating, impeaching and mitigating evidence.1 Yet, investigations that lead legal professionals into SNS raise questions about the ethical implications of surreptitious research. While there are ethics opinions and court decisions about pretexting in the real world,2 there is scant authority on the virtual approach, which has only recently begun to be addressed.
The ethical limits of how far an attorney, and by implication investigators and researchers, may go is being debated with precious little guidance outside certain specific areas of practice, i.e., law enforcement, civil rights and intellectual property infringement.3 The court decisions, ethics opinions and articles collected here provide background on the current legal thinking about covert investigations and include recent publications addressing online pretexting and the privacy limits of social media.
Appellate Case Law
In re Gatti, 8 P3d 966 (Ore. 2000)
“As we have explained, the accused was mistaken in his belief that a lawyer is entitled to misrepresent identity and purpose to gather information without violating the Code of Professional Responsibility and ORS 9.527(4). Nonetheless, the briefing in this case reveals that the accused is not alone among lawyers in holding that belief. The Bar’s June 16, 1993, letter to the accused in response to his complaint about SAIF and DOJ lawyers indicates that the Bar also may believe there might be exceptions to the rules and statute. However, as we have explained, the wording of DR 1-102(A)(3), DR 7-102(A)(5), and ORS 9.527(4), as well as this court’s case law, do not permit recognition of an exception to those rules and statute. The rules and statute apply to all members of the Oregon State Bar, without exception.”
Midwest Motor Sports v. Artic Sales, Inc., 347 F.3d 693 (8th Cir. 2003)
“This case arose out of a dispute between Arctic Cat Sales, Inc. (Arctic Cat), a snowmobile manufacturer, and two South Dakota Arctic Cat dealers, Midwest Motor Sports, Inc., d/b/a/ Elliott Power Sports (Elliott), and A-Tech Cycle Service, Inc. (ATech). Elliott sued Arctic Cat, asserting that Arctic Cat had violated South Dakota franchise law when it terminated Elliott’s Arctic Cat franchise and established A-Tech as a new franchisee in the same city as Elliott. During discovery, Arctic Cat’s counsel hired a private investigator to visit the Elliott and A-Tech franchises and to surreptitiously record conversations with each dealer’s employees. Subsequently, the district court 3 entered an order sanctioning Arctic Cat’s attorneys for unethically tape recording parties represented by opposing counsel. As a sanction, the district court excluded from evidence the tape recordings taken by the investigator, as well as any evidence obtained as a result of the recordings. The parties settled the franchise termination case prior to trial; however, they reserved the question of whether additional sanctions should be imposed. The district court then entered a written order denying further sanctions and explaining in detail the basis for its exclusionary order. We affirm the imposition of the evidentiary sanctions, and we decline to hold that monetary sanctions should have been imposed as well.”
Office of Lawyer Regulation v. Hurley, No. 2007AP478-D (Wisc. Sup. Ct. Feb. 11, 2009)
“From our independent review of the record, we agree with the referee that the OLR [Office of Lawyer Regulation] failed to establish by clear and substantial evidence that Attorney Hurley violated any ethical rules. Both director Sellen and DA Blanchard agreed that prosecutors have traditionally been allowed to use dissemblance in order to collect evidence. Neither of them could point to any Wisconsin precedent drawing a distinction between prosecutors and other attorneys in that regard, and the record demonstrates that there was wide belief in the Wisconsin Bar that the type of conduct engaged in by Attorney Hurley was acceptable. We also note that the OLR concedes that Attorney Hurley was not trying to break the rules and may not have known that his conduct would violate any rule.”
People v. Pautler, 47 P.3d 1175 (Colo. 2002)
“In this proceeding we reaffirm that members of our profession must adhere to the highest moral and ethical standards. Those standards apply regardless of motive. Purposeful deception by an attorney licensed in our state is intolerable, even when it is undertaken as a part of attempting to secure the surrender of a murder suspect. A prosecutor may not deceive an unrepresented person by impersonating a public defender. We affirm the hearing board’s finding that the district attorney in this case violated the Colorado Rules of Professional Conduct, and on somewhat different grounds, including the attorney’s failure to disclose his deception immediately after the event, we also affirm the discipline imposed by the hearing board.”
Alabama State Bar Office of the General Counsel: Opinion 2007-05
“During pre-litigation investigation of suspected infringers of intellectual property rights, a lawyer may employ private investigators to pose as customers under the pretext of seeking services of the suspected infringers on the same basis or in the same manner as a member of the general public.”
New York County Lawyers Association Committee on Professional Ethics: Formal Opinion No. 737 (2007)
“In New York, while it is generally unethical for a non-government lawyer to knowingly utilize and/or supervise an investigator who will employ dissemblance in an investigation, we conclude that it is ethically permissible in a small number of exceptional circumstances where the dissemblance by investigators is limited to identity and purpose and involves otherwise lawful activity undertaken solely for the purpose of gathering evidence. Even in these cases, a lawyer supervising investigators who dissemble would be acting unethically unless (i) either (a) the investigation is of a violation of civil rights or intellectual property rights and the lawyer believes in good faith that such violation is taking place or will take place imminently or (b) the dissemblance is expressly authorized by law; and (ii) the evidence sought is not reasonably and readily available through other lawful means; and (iii) the lawyer’s conduct and the investigator’s conduct that the lawyer is supervising do not otherwise violate the New York Lawyer’s Code of Professional Responsibility (the “Code”) or applicable law; and (iv) the dissemblance does not unlawfully or unethically violate the rights of third parties. These conditions are narrow. Attorneys must be cautious in applying them to different situations. In most cases, the ethical bounds of permissible conduct will be limited to situations involving the virtual necessity of non-attorney investigator(s) posing as an ordinary consumer(s) engaged in an otherwise lawful transaction in order to obtain basic information not otherwise available. This opinion does not address the separate question of direction of investigations by government lawyers supervising law enforcement personnel where additional considerations, statutory duties and precedents may be relevant. This opinion also does not address whether a lawyer is ever permitted to make dissembling statements directly himself or herself.”
New York State Bar Association Committee on Professional Ethics: Opinion 749 (2001)
“Use of computer software to surreptitiously examine and trace e-mail and other electronic documents. Digest: Lawyers may not ethically use available technology to surreptitiously examine and trace e-mail and other electronic documents.”
New York State Bar Association Committee on Professional Ethics: Opinion 402 (1975)
“Lawyer-employed investigator befriending prosecution witness. Digest: Not improper to employ investigator to befriend key prosecution witness to ascertain truthfulness of testimony.”
Oregon State Legal Ethics Committee: Opinion 2005-173
“Dishonesty and Misrepresentation: Participation in Covert Investigations
Scenario 1: Lawyer A represents a client in a workers’ compensation case who was injured in a fall. The insurance company denied her claim on the theory that it resulted from idiopathic fainting. There is no indication of negligence, fraud, or a safety violation. The client does not remember the accident. A coworker witnessed the accident, but does not want to get involved or talk to the client. The employer does not know about the witness. Applicable procedure does not provide for depositions of witnesses. Lawyer A counsels the client to have a friend approach the coworker-witness, pretend to be from the employer’s personnel office, and question the witness about the accident. The client follows Lawyer A’s advice.
Scenario 2: Lawyer B represents a company in a negligence action brought by Plaintiff X, who was allegedly injured in an apparently minor collision between Plaintiff X’s vehicle and a company truck. Lawyer B receives a copy of a doctor’s report diagnosing multiple serious injuries and attributing them to the collision. Lawyer B suspects that the report is fraudulent and decides to investigate. Using a fictitious name, Lawyer B calls the doctor’s office and sets up an appointment. Lawyer B attempts to convince the doctor to report that he is severely injured. In doing so, Lawyer B refers to Plaintiff X and tries to get the doctor to acknowledge that the doctor falsified Plaintiff X’s report.
Scenario 3: Lawyer C is a deputy district attorney. Police officers come to her for advice about developing evidence of illegal drug activity at a residence. The officers tell her that all they know is that some neighbors have observed increased foot traffic to the house at certain times of the day. Lawyer C states that, depending on its nature, the foot traffic can suggest illegal drug activity, and advises them to hire someone to pose as a drug customer, go to the house, and inquire about purchasing drugs. The police follow Lawyer C’s advice.”
Philadelphia Bar Association’s Professional Guidance Committee: Opinion 2009-02
“Turning to the ethical substance of the inquiry, the Committee believes that the proposed course of conduct contemplated by the inquirer would violate Rule 8.4(c) because the planned communication by the third party with the witness is deceptive. It omits a highly material fact, namely, that the third party who asks to be allowed access to the witness’s [Facebook and MySpace] pages is doing so only because he or she is intent on obtaining information and sharing it with a lawyer for use in a lawsuit to impeach the testimony of the witness. The omission would purposefully conceal that fact from the witness for the purpose of inducing the witness to allow access, when she may not do so if she knew the third person was associated with the inquirer and the true purpose of the access was to obtain information for the purpose of impeaching her testimony.
The fact that the inquirer asserts he does not know if the witness would permit access to him if he simply asked in forthright fashion does not remove the deception. The inquirer could test that by simply asking the witness forthrightly for access. That would not be deceptive and would of course be permissible. Plainly, the reason for not doing so is that the inquirer is not sure that she will allow access and wants to adopt an approach that will deal with her possible refusal by deceiving her from the outset. In short, in the Committee’s view, the possibility that the deception might not be necessary to obtain access does not excuse it.”
Utah State Bar Ethics Advisory Opinion Committee: Opinion No. 02-05 (2002)
“Issue: What are the ethical considerations for a governmental lawyer who participates in a lawful covert governmental operation, such as a law enforcement investigation of suspected illegal activity or an intelligence gathering activity, when the covert operation entails conduct employing dishonesty, fraud, misrepresentation or deceit?
Conclusion: A governmental lawyer who participates in a lawful covert governmental operation that entails conduct employing dishonesty, fraud, misrepresentation or deceit for the purpose of gathering relevant information does not, without more, violate the Rules of Professional Conduct.”
New York Advisory Committee on Judicial Ethics: Opinion 08-176 (2009)
“Provided that the judge otherwise complies with the Rules Governing Judicial Conduct, he/she may join and make use of an Internet-based social network. A judge choosing to do so should exercise an appropriate degree of discretion in how he/she uses the social network and should stay abreast of the features of any such service he/she uses as new developments may impact his/her duties under the Rules.”
“Judge T had ex parte communications with counsel for a party in a matter being tried before him. Judge T was also influenced by information he independently gathered by viewing a party’s web site while the party’s hearing was ongoing, even though the contents of the web site were never offered as nor entered into evidence during the hearing. Judge T’s actions described above evidence a disregard of the principles of conduct embodied in the North Carolina Code of Judicial Conduct, including failure to personally observe appropriate standards of conduct to ensure that the integrity and independence of the judiciary shall be preserved (Canon 1), failure to respect and comply with the law (Canon 2A), failure to act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary (Canon 2A), engaging in ex parte communication with counsel and conducting independent ex parte online research about a party presently before the Court (Canon 3A(4)). Judge T’s actions constitute conduct prejudicial to the administration of justice that brings the judicial office into disrepute (N.C. Const. art IV, S 17 and N.C.G.S. S 7A-376(a)).”
Judge Reprimanded for Friending Lawyer and Googling Litigant, ABA Journal Law News Now, June 1, 2009
“North Carolina judge has been reprimanded for ‘friending’ a lawyer in a pending case, posting and reading messages about the litigation, and accessing the website of the opposing party.”
Corporate Policing and Corporate Governance: What Can We Learn from Hewlett-Packard’s Pretexting Scandal?, 77 U. Cin. L. Rev. 523 (2008)
“When Hewlett Packard (HP) announced in September 2006 that its Board Chairman, Patricia Dunn, had authorized HP’s security department to investigate a suspected Board-level press leak and that the investigation included tactics such as obtaining HP Board members’ and reporters’ telephone records through false pretenses (conduct known as ‘pretexting’), observers vehemently condemned the operation as illegal and outrageous. In congressional testimony, however, Dunn defended the investigation as ‘old fashioned detective work.’ Although Dunn would later claim that she was unaware of key aspects of the investigation, her description was not so far off. The police routinely rely on deception to investigate and apprehend wrongdoers. Although it is tempting to view HP’s pretexting episode as a one-time scandal, the episode illuminates a more important, largely unexplored, conflict between corporate policing and corporate governance.
This Article analyzes the tension between the board’s competing responsibilities of overseeing its internal corporate police and implementing the norms and structures that presumably create ethical (and therefore ‘good’) corporate governance. As the HP scandal aptly demonstrates, law enforcement techniques that rely primarily on deception are likely to conflict with corporate governance norms such as trust and transparency. After outlining the problem, the Article considers its broader policy implications.”
Deception in Undercover Investigations: Conduct-Based vs. Status-Based Ethical Analysis, 32 Seattle Univ. L. Rev.123 (2008)
“The ABA Model Rules of Professional Conduct proscribe conduct involving dishonesty, misrepresentation or deception. They also bar an attorney from doing indirectly, through a proxy, that which is ethically prohibited. Yet lawyers have supervised and directed investigators for decades in undercover operations aimed at uncovering racial discrimination, political corruption and organized crime. Some courts and commentators have argued that no deception should ever be permitted by attorneys, acting directly or indirectly. However, the recent trend has been to permit lawyers to supervise, and thereby indirectly participate in, undercover investigations in three substantive areas of the law: criminal, civil rights and intellectual property. Many jurisdictions permit undercover criminal investigations by government attorneys, but are silent about the rights of defense counsel to use deception.
I argue that the states should eschew status based distinctions in determining whether to permit undercover investigations. Whether particular conduct is ethical or not should not depend on whether it is undertaken by a prosecutor or defense attorney, or whether the lawyer seeks to enforce intellectual property rights as opposed to real property rights. The playing field should be leveled, and the ethics rules should focus on the actual conduct of the lawyer, not her status as a public prosecutor or civil rights investigator. Undercover investigations should be ethically permissible in any area of the law, and by any attorney, public or private sector, provided that the investigation is necessary, does not otherwise violate the law or ethics rules, and is indirectly supervised by the lawyer.”
Deceptive Lawyering, 74 U. Cin. L. Rev 577 (2005)
“This Article briefly examines some applicable ethics rules in Part II. Part III discusses two common forms of deceptive lawyering. Section A analyzes lawyers’ misrepresentation of their identities and employment of undercover operatives to obtain information about actual or potential adversaries. Section B discusses lawyers’ secret recording of conversations, a subject that courts and state ethics committees have
long debated with inconsistent results.10 The Article concludes in Part IV that states should amend their ethics rules to address attorneys’ undercover investigations, and that existing ethics rules adequately regulate attorneys’ surreptitious recording of conversations.”
Ethical Issues Arising From the Investigation of Activities of Intellectual Property Infringers Represented by Counsel, 1 Nw. J. Tech. & Intell. Prop. 3 (2003)
“This article will describe how the rules of ethics have been understood by the courts to allow investigative activities (limited to contact that mimics the represented party’s transactions with consumers) in the context of intellectual property rights enforcement when this enforcement involves contact with a represented party. Section I describes the applicable Rules, as stated in the Model Rules. Section II discusses decisions that have addressed the issue. Section III addresses the ABA’s guidance on the issue. Finally, Section IV attempts to show that the previously discussed authorities are in harmony with the purposes of the anti-contact rule and delineates proper conduct under the Rules.”
Ethical Responsibility of Lawyers for Deception by Undercover Investigators and Discrimination Testers, 8 Geo. J. Legal Ethics 791 (1995)
“This Article addresses the ethical issues posed for lawyers by the misrepresentations as to identity and purpose made for fact-gathering purposes by discrimination testers and undercover investigators. The issue addressed is, as will be explained, distinct from the issues raised by misrepresentations that are made explicitly on the lawyer’s behalf and in the lawyer’s stead. It differs also from the issues evoked by misrepresentations made by others at the lawyer’s instance that are of so grave a character as to constitute fraud or perjury. And finally, the issue is different from the issues raised by misrepresentations that are made, with the lawyer’s complicity, in conduct that invokes some other ethical prohibition, such as the prohibition on communicating with a person known to be represented by counsel, or the use of methods of obtaining evidence that violate the rights of third persons.
This Article, then, addresses only a supervising lawyer’s responsibility for the misrepresentations necessarily made by undercover investigators and discrimination testers, solely as to their identity and purpose, and solely for evidence-gathering purposes. It concludes, after close analysis of the nature of the misrepresentations involved and of the purpose and the text of the ostensibly pertinent Model Rules, that the misrepresentations of the investigator/tester for which a supervising lawyer has vicarious responsibility do not violate the Model Rules.”
Fighting Fire with Fire: Private Attorneys Using the Same Investigative Techniques as Government Attorneys: The Ethical and Legal Considerations for Attorneys Conducting Investigations, 36 Hofstra L. Rev. 397 (2007)
“While some investigative techniques are prohibited by both the law and the ethics rules, lawyers must also keep in mind their duty of zealous representation under both the Sixth Amendment and the disciplinary rules, which require that a lawyer not intentionally ‘fail to seek the lawful objectives of the client through reasonably available means permitted by law.’ With technological advances, the investigative tools available to a lawyer have increased, but so have the potential ethical pitfalls. Attorneys must be careful not only to be on the cutting edge of investigative technologies in zealously representing their clients, but also on the cutting edge of ethical approaches to using that technology.
Finally, many of the traditional investigative techniques used by government attorneys – undercover investigations, secret tape recordings, trespass, document gathering, and contacting represented individuals – involve conduct that appears to violate the ethics rules. Advancements in technology now enable private attorneys to conduct the same kinds of investigations once feasible only by the government. While the history and tradition that accompanies these law enforcement techniques make it difficult, if not impossible, for bar associations to issue opinions condemning these practices, the ethics rules should apply evenly to both government and non-government attorneys.”
Lawyers, Covert Activity, and Choice of Evils, 32 J. Legal Prof. 99 (2008)
“After discussing the origins of Model Rule 8.4(c), which purports to prohibit all deceit and misrepresentation, and states’ recent amendments to the rule to accommodate lawyer involvement in some covert activity, Professor Fortune proposes a broad rule that would allow lawyers to supervise and actively participate in lawful investigations. As an alternative he proposes that states follow Virginia and qualify the rule against deceit by adding ‘that reflects adversely on the person’s fitness as a lawyer.’ In this article, Professor Fortune discusses the concept of choice of evils in the context of deceit to further a societally-beneficial end.”
In Praise of Overzealous Representation – Lying to Judges, Deceiving Third Parties, and Other Ethical Conduct, 34 Hofstra L. Rev. 771 (2006)
“Three ethical rules are both clear and highly desirable – MR 3.3(a)(1), which forbids a lawyer to make a false statement of fact to a tribunal; MR 4.1(a), which forbids a lawyer to make a false statement of material fact to a third person; and MR 8.4(c), which proscribes conduct involving dishonesty, fraud, deceit, or misrepresentation.
Nevertheless, by considering the larger legal context of the lawyer’s role, by understanding inconsistent ethical rules in the light of reason, and by applying insights of moral philosophy, this article concludes that there are circumstances in which a lawyer can ethically make a false statement of fact to a tribunal, can ethically make a false statement of material fact to a third person, and can ethically engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.”
Pretexting: A Necessary Means to a Necessary End?, 56 Drake L. Rev. 791 (2008)
“This Note will attempt to explain the ethical implications behind a lawyer’s use of deception to gather private information. Part II will look at the Hewlett-Packard scandal as an example of how a lawyer’s use of deception degrades the public’s perception of lawyers. Part III looks at the congressional response to the Hewlett-Packard scandal. Part IV discusses the moral dilemma of seeking necessary information at the cost of integrity in both public and private practice. Part V discusses how some states, like Iowa, have adopted comments to the Model Rules of Professional Conduct that allow for the use of some deception, and may even indirectly allow the use of pretexting. In conclusion, this Note will propose that exceptions to Rule 8.4(c) of the Model Rules of Professional Conduct be repealed as a solution to the use and justification of dishonest tactics like pretexting in the legal profession.”
Saving Facebook, 94 Iowa L. Rev. 1137 (2009)
“This Article provides the first comprehensive analysis of the law and policy of privacy on social network sites, using Facebook as its principal example. It explains how Facebook users socialize on the site, why they misunderstand the risks involved, and how their privacy suffers as a result. Facebook offers a socially compelling platform that also facilitates peer-to-peer privacy violations: users harming each others’ privacy interests. These two facts are inextricably linked; people use Facebook with the goal of sharing some information about themselves. Policymakers cannot make Facebook completely safe, but they can help people use it safely.
The Article makes this case by presenting a rich, factually grounded description of the social dynamics of privacy on Facebook. It then uses that description to evaluate a dozen possible policy interventions. Unhelpful interventions – such as mandatory data portability and bans on underage use – fail because they also fail to engage with key aspects of how and why people use social network sites. The potentially helpful interventions, on the other hand – such as a strengthened public-disclosure tort and a right to opt out completely – succeed because they do engage with these social dynamics.”
“Is it wrong to lie to obtain facts needed for justice? The answer to that question depends on whether one looks to court decisions or to the ABA Model Rules of Professional Conduct. Courts have permitted lying in some circumstances to learn the truth about civil or criminal wrongs, but the Model Rules appear to prohibit any lie whatever.”
Ethics of ‘Friending’ Adverse Witnesses, New Jersey Law Journal, Sept. 1, 2009
“Consider the following hypothetical scenario: An attorney searches for an adverse party in an Internet search engine and discovers that the party has a Facebook page. The attorney reviews the limited public information available on the party’s Facebook page, but he realizes that if he asks to be online ‘friends’ with the party he will be able to access much more detailed, private information about that party. This private information is only available to users the party accepts as ‘friends.’ The attorney suspects that the private information may contain relevant information about the party’s credibility or the lawsuit. Taking advantage of the fact that many social networking users are less than discriminating when accepting ‘friend’ requests, the attorney wonders whether he may ask a third party, such as his paralegal, to attempt to ‘friend’ the party in order to obtain access to the party’s private information. The party and the paralegal are not acquaintances, but the paralegal would use his actual name and other identifying information in an attempt to ‘friend’ the party. Of course, to gain access without raising suspicion, the paralegal would not reveal his affiliation with the attorney or the motivation for becoming ‘friends.’ The question that arises out of this hypothetical is whether, from an ethical perspective, a cyberspace ‘friend’ could become a foe.”
Fishing With Dynamite: How Lawyers Can Avoid Needless Problems From “Pretextual Calling”, 69 Ala. Law. 182 (2008)
“Consequently, ‘pretextual calling’ has become an investigative tool that is more feared than understood. Some pretexting is plainly illegal. However, other ‘pretexting’ is not only legal and sometimes necessary, but also expressly permissible according to case law and the opinions of authorities on professional ethics-including Alabama’s own Center for Professional Responsibility. This article offers guidelines to determine when and how pretexting can be legal and appropriate.”
Legal Ethics and Facebook, Legal Ethics Forum, April 29, 2009
“The Philadelphia Bar Association’s Professional Guidance Committee recently issued an opinion concerning a lawyer’s proposed investigation of a witness’s Facebook page. The lawyer wanted to ask a third person — someone whom the witness would not recognize — to send a ‘friend’ request to the witness. The lawyer believed that the witness generally granted these requests and that the third person would be able to uncover information that could be used to impeach the witness at trial. (The information could only be read by the witness’s Facebook friends.) The Committee, citing Rules 5.3, 8.4, and 4.1, said that the lawyer could not engage in such an investigation. That seems like the right answer to me. Anyone disagree?”
Legal White Lies, ABA Journal, March 2005
“So far, few ethics regulators have waded into the thicket of deceptive activities undertaken as part of investigations outside the context of criminal and civil rights enforcement.
Oregon, however, did address the issue in Formal Opinion 173 (2003), where a lawyer representing a client in a workers’ compensation case directed a third party to pose as an employee of the defendant to coax a reluctant witness to come forward.
The committee determined that, under the Oregon misconduct rule revised after Gatti, covert activity designed to search for evidence of legal injury is not protected by exceptions for violations of ‘civil or criminal law or constitutional rights.’
Even with the courts forging ahead of ethics regulators, the rules governing how far lawyers may go in using deceptive practices, especially in civil cases, still are a work in progress. The issue is currently being examined by the ABA ethics committee, which is considering issuing an opinion on the topic.
In the meantime, lawyers without clear guidance in their jurisdictions might consider leaving their covert tactics for another day when the fog has cleared.”
Not Telling the Whole Truth: How Much Leeway Do Lawyers or Investigators Working with Them Have To Feign Identity?, Washington State Bar News, June 2008
“To ascertain whether a client has a meritorious case, or to advocate effectively for a client, a lawyer may need to assume the role of detective. She has to pursue information known only to neutral witnesses, custodians of financial records, or persons associated with the opposing party, and this information may be difficult to obtain. The civil and criminal rules provide ways of obtaining such information through discovery, but discovery can be expensive and time-consuming, and depending on the circumstances, may be permitted only after a lawsuit has been filed. A lawyer, whether directly or through an investigator, might prefer to find out facts less overtly, particularly in the pre-complaint stage. In pursuing such information, the lawyer or investigator may suppose it advantageous to hide or misrepresent his or her true identity and/or the purpose of the inquiry. The use of such tactics is referred to as ‘pretexting’ or ‘dissemblance.’ To what extent is pretexting permissible under Washington’s ethical rules?”
Report on Pretexting—Recent Cases & Ethics Opinions, NY Professional Responsibility Report, June 2009, at 1
“How far can a lawyer go to obtain damaging information about the other side, about an adverse witness, or even a judge?
The use of ‘pretexting,’ i.e., some form of deception, to obtain information not otherwise available, is not a new concept in legal ethics. In this article, I will survey some recent ethics opinions and court decisions from other jurisdictions addressing the use of an investigator to conduct the lawyer’s pretexting. I will also address relevant portions of the New York Rules of Professional Conduct governing a lawyer’s duties when using a nonlawyer, such as an investigator, to engage in pretexting, and a leading New York
ethics opinion from 2007.
The baseline guidance that we can take from all of these authorities is that pretexting through the employment of nonlawyers that the lawyer supervises can be permissible, but only when done in a very narrow category of circumstances. When the pretexting goes too far, however, the disciplinary consequences can be dire.”
What Every Lawyer Needs to Know About Pretexting, Los Angeles County Lawyer, Sept. 2007, at 41
“Despite recent cases involving pretexting, new federal laws making it illegal to pretext to obtain phone records, and various proposed federal and state laws expanding pretexting to a broad range of information, 42 percent of organizations surveyed by Deloitte Financial Advisory Services in 2007 admitted that they do not have written guidelines against the use of pretexting. Another 42 percent did not know if they had guidelines or stated it was not applicable to their business. Eight percent have guidelines and are satisfied with them, while another 5 percent have guidelines but are no longer satisfied with them.”
When the Truth Can Wait, ABA Journal, Feb. 2008
“The ABA Ethics Committee has not directly addressed the issue. But if and when it does choose to recognize an exception to the current prohibition in the Model Rules against any form of dishonesty, fraud, deceit or misrepresentation, proposing amendments to the rules would be a possible alternative to issuing an opinion interpreting them.
This approach might follow the lead of Alabama, Florida and Oregon. Alabama’s amended rule, for instance, permits a government prosecutor to advise and order ‘any action that is not prohibited by law’ and to have ‘limited participation in the action.’ Florida’s rule permits government lawyers to supervise undercover investigations. Only Oregon’s rule encompasses civil cases as well as government investigations.
Any amendments, which must be approved by the ABA’s policy-making House of Delegates, might involve Model Rule 4.1 (Truthfulness in Statements to Others) as well as Rule 8.4. The key issues likely would be in what circumstances some deceptive conduct would be permitted, whether it would be permitted for both lawyers and investigators they supervise, and whether it would be permitted in certain civil cases as well as government investigations.
Many argue that prohibiting all forms of deceptive conduct by lawyers goes too far. Amending the ABA Model Rules to permit limited deception in carefully delineated circumstances would recognize that sometimes telling a white lie is indispensable to carrying out effective law enforcement or protecting civil rights.”
1 See generally Social Networking Online and Criminal Justice, LLRX, Feb. 28, 2009; Social Networking Evidence in a Self-Surveillance Society, N.Y.L.J., March 10, 2009, at 5, col. 1; Criminal Defense in the Age of MySpace and Facebook, The Defender (Harris County Criminal Lawyers Association), Summer 2009, at 18.
2 See, e.g., First ‘Pretexting’ Charges Filed Under Law Passed After HP Spy Scandal, Wired, Jan. 9, 2009.
3 See, e.g., Anderson v. Hale, 202 F.R.D. 548 (N.D. Ill. 2001); Apple Corps v. Int’l Collectors Soc’y, 15 F. Supp. 2d 456 (D.N.J. 1998); Cartier v. Symbolix, Inc., 386 F.Supp.2d 354 (S.D.N.Y.2005); Gidatex v. Campaniello Imports, Ltd., 82 F. Supp. 2d 119 (S.D.N.Y. 1999); United States v. Smallwood, 365 F.Supp.2d 689 (2005); United States v. Parker, 165 F. Supp. 2d. 431 (W.D.N.Y. 2001). Accord In the Matter of Malone, 105 A.D. 2d 455 (3rd Dept 1984); People v Holman, 78 Misc. 2d 613 (Sup. Ct. NY County 1974).