One Perspective: The law and ethics of 'pretexting'

By W. William Hodes
The Daily Record Newswire

In today’s parlance, “pretexting” means employing some kind of ruse or deception to obtain information or to achieve a desired result.

Opportunities for pretexting appear in law practice with great regularity and across a broad array of practice settings. One of the first cases I studied in law school, for example, involved hand-to-hand service of process on a defendant who was enticed into the jurisdiction by a written invitation to attend a non-existent high school football team reunion banquet.

Other examples are not hard to find. An intellectual property law firm planning a suit to halt the sale of counterfeit brand name luggage may hire a “shopper” to appear during the target defendant’s business hours and pretend to be interested in the “best” brands at the lowest prices.

A personal injury lawyer may purchase a product (such as a lawn mower) that injured his client, and call the manufacturer’s helpline to ask about the availability of safety features for his “new machine.” Or an employment firm may set up a fake “job interview” to see how a job discrimination plaintiff actually functions in the business world.

Some forms of pretexting are completely illegal, and carry hefty criminal penalties. Typically, these illegal actions involve unauthorized access to tax or Social Security information, as well as police, telephone, financial, medical or other personal records that implicate serious privacy concerns or create a great danger of identity theft.

It should go without saying that lawyers may not engage in these forms of pretexting, nor permit nonlawyer assistants, such as investigators or forensic accountants, to take this kind of illegal action on their behalf. Lawyers should be zealous advocates for their clients, but always within the bounds of law.

But what about pretexting that is not illegal? If undercover police officers making drug buys and police sting operators routinely pretend to be what they are not in order to ferret out crime, shouldn’t the prosecutor be directly involved, so that the evidence gathered can be presented most effectively?

If a civil rights organization sends “testers” to see which landlords will refuse to rent apartments to which people, in violation of fair housing laws, shouldn’t the organization’s lawyers be heavily involved, for the same reason? Indeed, because lawyers are trained to observe carefully, wouldn’t the best approach be to have lawyers with the right profiles play the part of the would-be renters?

The case law and ethics opinions are badly split, depending on the jurisdiction and the specific facts, but the weight of recent authority answers in the negative. The most common rationale characterizes even legal forms of pretexting as “conduct involving dishonesty, fraud, deceit or misrepresentation,” and thus in violation of Model Rule 8.4(c) and its state counterparts.

It helps the argument to remember that Rule 8.4(c) is well understood to apply to lawyer conduct outside of litigation and even outside of representation of clients in non-adversarial matters - and that it contains no exceptions.

On the other hand, too absolutist a position undercuts the argument against otherwise legal pretexting by trivializing it. Some lawyers play poker in their spare time, for example, and have been known to bluff - which is misdirection and deceit. Some lawyers engage in elaborate “tooth fairy” rituals in their families - thus misrepresenting the facts and deceiving their own children.

Yet, because the Rules of Professional Conduct are “rules of reason,” no court or disciplinary authority would consider applying the “no exceptions” Rule 8.4(c) to these and similar instances of everyday “dishonesty.”

Proper application of the ethical rules to pretexting requires a highly nuanced consideration of the entire situation (including the available alternatives). Two recent examples provide a good contrast.

Madison, Wis., lawyer Stephen Hurley was representing a man charged with introducing a minor to pornographic materials. Hurley suspected that the child was not telling the truth, and had visited pornographic websites on his own before meeting the defendant.

Fearing that asking for or subpoenaing the child’s computer would result in a quick scrubbing, Hurley and his investigator devised a fake “promotion” in which young computer owners would be given a new laptop to use without charge for 90 days, while their existing computers would be “held in storage” and returned at the end of the trial period. Naturally, only one computer exchange was actually offered, and the young accuser (in the presence of his mother) accepted.

In a 2009 opinion, the Wisconsin Supreme Court found Hurley innocent of any ethical violations on account of this sting operation. (Office of Lawyer Regulation v. Hurley, No. 2007AP478-D (Feb. 11, 2009).)
This seems sound, given the high stakes for Hurley’s client, the influence of the Sixth Amendment and the fact that in Wisconsin, at least, prosecutor participation in similar police stings had long been the norm.

In Formal Opinion 2010-2, the Bar of the City of New York went to the other end of spectrum and beyond. That opinion stated that it was an improper deception for a lawyer or his agent to use a phony name and profile on social networks such as Facebook, in order to induce an unrepresented party to agree to provide access to otherwise shielded information. This seems disconnected from the real world of online networking and even a little silly, especially in light of the Bar’s willingness to permit lawyers to use their real names, but without stating their true purpose in obtaining the information. If a user is willing to provide access to strangers generally, what unfairness is there if the stranger happens to be a lawyer?

These examples and many more like them demonstrate, unfortunately, that no newspaper column or ethics advice hotline can provide reliable answers to pretexting issues that may arise in practice. Each case must be considered individually, and researched just like the legal question that it is, depending upon the jurisdiction.

William Hodes is a solo practitioner who specializes in legal ethics and the law of lawyering. Based in Indianapolis, and Lady Lake, Fla., he is Professor Emeritus of Law at Indiana University, where he taught for 20 years. Hodes’s website is www.hodeslaw.com.

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