A lose-lose situation: analyzing the implications of investigatory pretexting under the rules of professional responsibility.

• Author: Braun, Jeannette

INTRODUCTION

Chief Deputy District Attorney Mark Pautler lied. He told William Neal that his name was "Mark Palmer" and that he was a public defender. This lie was not without admirable motivation; however, it secured the surrender of a man who allegedly killed three women with a wood-splitting maul. (1) Despite the fact that Pautler's lies furthered the public's safety, the Supreme Court of Colorado determined that Pautler's deceit violated the Colorado Rules of Professional Responsibility and sanctioned him. (2)

Attorney Stephen P. Hurley also lied. He used the services of a private investigator to devise a sham computer research company so that he could obtain access to a complaining witness' computer. He similarly had admirable motivations; he believed the computer contained information exonerating his client of all charges in a criminal case. (3) The Supreme Court of Wisconsin not only found that Hurley did not violate any Wisconsin Rules of Professional Conduct, it arguably implied that he may have violated the Rules if he failed to lie in this situation because he would not be zealously defending his client. (4)

Both attorneys utilized "pretexting" to gain access to something desired--either the surrender of a criminal or access to information. "Pretexting" is defined differently depending on the situation, but generally involves disguising one's identity and purpose when approaching a target to obtain potentially significant information. (5) Technological advances, particularly with regard to the internet, are making it easier than ever for attorneys and investigators to disguise their identity and purpose in order to obtain potentially valuable information. As evidenced by In re Pautler and In re Hurley, however, it is not clear whether pretexting is a permissible tool under the Rules of Professional Conduct.

The Bar is a self-regulated entity, charged with establishing its own rules of professional conduct. (6) Pretexting is clearly not acceptable when it rises to the level of illegal activity, but its permissibility is unclear when the conduct is not criminal. (7) Although some State Bar Associations have addressed this issue, many have not, which is surprising because pretexting implicates two competing, yet significant policy considerations. Supporting the use of pretexting is the notion that attorneys should zealously advocate their clients' positions and do everything in their power to obtain the information necessary to do so. Conversely, attorneys need to conduct themselves in a manner consistent with upholding the image of the bar. Engaging in deceit and misrepresentation does not improve the image of attorneys. Therefore, attorneys looking to gauge the potential implications of investigatory deceit must choose between zealous advocacy and the potential for sanctions without clear guidance.

Part I of this Comment will examine the interests courts should consider when addressing this issue. First, it will examine the many Rules of Professional Conduct potentially implicated by pretexting. Then it will lay out several broad trends that can be extrapolated from the myriad of opinions issued on this subject. Finally, it will compare the amendments several state bars have made to their rules in an attempt to provide guidance. Part II will then examine the policies underlying pretexting. It concludes that in weighing the competing considerations, the scales tip in favor of upholding the image of the bar and prohibiting the use of pretexting.

1. THE CURRENT RULES: AN UTTER LACK OF GUIDANCE

   The American Bar Association (ABA) has not provided any direct guidance on the ethical implications of pretexting, although the language of several Model Rules of Professional Conduct (the "Rules") may be violated depending on the circumstances surrounding the pretexting. In lieu of clear, uniform guidance by the ABA, some individual state bars have dealt with the permissibility of pretexting on a case-by-case basis or by proactively issuing a Bar Opinion or amending the Bar Rules. Although very few of the cases and opinions directly relate to pretexting activities on the internet, they provide a useful view of the broader policy considerations that are also implicated in the internet context.

   1. The ABA Model Rules of Professional Conduct

      Pretexting activities potentially violate the language of several Rules, regardless of whether the lawyer personally participates in the activities or merely oversees them. As explored below, nearly all pretexting conflicts with Rule 4.1 Truthfulness in Statements to Others, and Rule 8.4 Misconduct. (8) Additionally, the circumstances surrounding the pretexting could implicate several other Rules. The most significant of these include Rule 3.7 Lawyer as Witness; Rule 4.2 Communication with Person Represented by Counsel; Rule 4.3 Dealing with Unrepresented Person; and Rule 4.4 Rights of Third Persons. (9) Finally, lawyers could face liability stemming from nonlawyer assistants' activities under Rule 5.3. (10) It is also important to note that some courts broadly impose sanctions when the attorney's conduct reflects poorly on the profession, and do not necessarily require clear violation of a rule. (11) The fact that so many rules are potentially implicated indicates the risk involved in pretexting activities.

      The most commonly cited rule in the pretexting context is Rule 8.4 Misconduct. The relevant text of the rule states:

      It is professional misconduct for a lawyer to:

      (a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another;

      (b) commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects;

      (c) engage in conduct involving dishonesty, fraud, deceit, or misrepresentation. (12)

      Most significant to this situation is subsection (c) because pretexting necessarily involves various forms of deceit and misrepresentation. Additionally, Section (a) makes it clear that the lawyer cannot circumvent the prohibitions of the rule through the acts of another, which signifies that lawyers cannot rely on private investigators or nonlawyer assistants to obtain the information without violating the language of the rule.

      In addressing the implications of pretexting under Rule 8.4, some commentators find Comment [2] significant. It states that "[t]raditionally, the distinction [between permissible and impermissible activities] was drawn in terms of offenses involving 'moral turpitude."' (13) Therefore, "[a]lthough a lawyer is personally answerable to the entire criminal law, a lawyer should be professionally answerable only for offenses that indicate lack of those characteristics relevant to law practice." (14) Some argue that the "gloss on the rule" contained in Comment [2] should apply to the entire rule, not just the section on criminal liability. Therefore, ethics sanctions should only apply in situations that indicate a lack of moral turpitude rising to the level of a lack of fitness to practice law. (15) But this construction ignores the introductory language of Comment [2], which states that "[m]any kinds of illegal conduct reflect adversely on fitness to practice law," indicating that Comment [2] applies solely to criminal conduct. (16) If this construction could be successfully argued to a judge, however, it could have significant ramifications on the ability of lawyers to conduct or supervise investigations involving pretexting.

      Another significant provision applicable in nearly all pretexting situations is Rule 4.1 Truthfulness in Statements to Others. The relevant text in this Rule provides: "In the course of representing a client a lawyer shall not knowingly: (a) make a false statement of material fact or law to a third person...." (17) Comment [1] to the Rule clarifies: "A misrepresentation can occur if the lawyer incorporates or affirms a statement of another person that the lawyer knows is false ... [or] by partially true but misleading statements or omissions that are the equivalent of affirmative false statements." (18) It is likely that any misleading or deceptive statements made in the course of pretexting are material, (19) so the issue under this Rule is whether they are in the course of representing a client. While this will depend on the specific circumstances surrounding the pretexting, it is likely that at least an argument could be made that this requirement is easily satisfied because the lawyer is typically engaging in pretexting activities to collect evidence that can be used to aid in the client's case. Even if this rule is not implicated, however, Comment [1] states: "For dishonest conduct that does not amount to a false statement or for misrepresentations by a lawyer other than in the course of representing a client, see Rule 8.4"; indicating that the pretexting could still violate Rule 8.4 even if Rule 4.1 is not technically violated. (20)

      Depending on the circumstances, the pretexting could violate several other Rules. If the pretexting is directed at another party in the matter, Rule 4.2 Communication with Person Represented by Counsel (commonly referred to as the "anti-contact" rule) could be implicated. This Rule requires:

      In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order. (21) The key requirements in this Rule are that the lawyer knows the party is represented and that the discussion is about the subject matter of the representation. Pretexting will likely involve the subject matter of the representation because the primary goal is usually to collect evidence against the opposing party. Since the lawyer is targeting the party, he is likely to know that the party...