By Jeremy R. Feinberg [Originally published in NYPRR June 2009]
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.
New York Authority Relevant to Pretexting
As a starting point, why should New York lawyers worry about getting into trouble for something a nonlawyer does? Rule 5.3 addresses a lawyer’s duties to supervise the nonlawyers he employs, and the responsibilities which flow from what those nonlawyers do. Indeed, the Comments issued by the New York State Bar Association, although not adopted or addressed by the Courts, state that Rule 5.3’s purpose is to “give reasonable assurance that the conduct of all nonlawyers employed by or retained by or associated with the law firm is compatible with the professional obligations of the lawyer and firm.” [Rule 5.3, cmt , available at http://www.nysba.org/Content/NavigationMenu/ForAttorneys/ProfessionalStandardsforAttorneys/FinalNYRPCsWithComments(April12009).pdf; hereafter “Rule 5.3, cmt ]
Rule 5.3 states that a lawyer shall ensure that nonlawyers he employs are “adequately supervised, as appropriate,” and calls for “reasonable [supervision] under the circumstances.” Reasonable supervision depends on, among other things, “the experience of the person whose work is being supervised, the amount of work involved in a particular matter and the likelihood that ethical problems might arise in the course of working on the matter.” [Rule 5.3(a).] It is clear that a supervisory lawyer can be held responsible for a nonlawyer’s pretexting, when the lawyer orders or directs or ratifies the conduct at issue. [Rule 5.3(b)(1); cf. Rule 8.4(a).] An attorney with general management authority within the firm may also be held responsible under some circumstances for the conduct of a nonlawyer another lawyer in the firm employs. [Rule 5.3(b)(2).]
The Rules also contain several admonitions against dishonesty by a lawyer. Two that are relevant to analysis of pretexting are Rule 4.1 and Rule 8.4. On its face, Rule 4.1 provides the more narrow prohibition: “In the course of representing a client, a lawyer shall not knowingly make a false statement of fact or law to a third person.” The narrowness may be somewhat illusory; certainly, all the incidents of pretexting discussed in this article were the work of a lawyer acting in furtherance of a client’s claims or objectives. Moreover, in two of the opinions I will discuss, the attorney knowingly made (although through a nonlawyer) some affirmative false statements of fact to a third person. This is arguably the “classic” pretexting scenario. The comments to the rule suggest that “[m]isrepresentations can also occur by partially true but misleading statements that are the equivalent of affirmative false statements.” [Rule 4.1 cmt. .]
Rule 8.4 provides a potentially broader prohibition than Rule 4.1, because it is not tied to the representation of a client and lacks any explicit scienter requirement. Rule 8.4 states that a lawyer “shall not: … (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation.” However, although the terms “dishonesty,” “deceit,” and “misrepresentation” are not defined in the Rules, I would note that the term “fraud” is defined to include not only conduct that is illegal under applicable law, but also other conduct that “has a purpose to deceive, provided that it does not include conduct that… lacks an element of scienter, deceit, intent to mislead, or knowing failure to correct misrepresentations that can be reasonably expected to induce detrimental reliance by another.” [Rule 1.0(i).]
Before the adoption of the Rules, the New York County Lawyers Association (NYCLA) addressed the question of whether a non-governmental lawyer may “utilize the services of and supervise an investigator if the lawyer knows that dissemblance [i.e. pretexting] will be employed by the investigator?” [NYCLA Op. 737 (2007).]
Surveying a series of court decisions that had declined to suppress evidence obtained as a result of pretexting or other dissembling, NYCLA opined that non-government lawyers could employ and supervise others to engage in pretexting under certain highly limited circumstances. (Significantly, NYCLA did not reach the issue of whether the lawyer could personally engage in the conduct). [NYCLA Op. 737 at 3, 5.]
NYCLA identified four factors which must be satisfied before pretexting can be considered ethically appropriate. First, the pretexting must either be authorized by law, or undertaken in the investigation of claims relating to a violation of civil rights or of intellectual property rights, when the lawyer believes in good faith that the violations are occurring or will occur “imminently.” [Id. at 5.] Second, the evidence to be obtained through pretexting must not be reasonably available through other lawful means. [Id. at 5-6.] Third, the pretexting, and the lawyer’s own conduct, must not violate any disciplinary rule or applicable law. [Id. at 6.] Finally, the pretexting must not unlawfully or unethically violate the rights of third parties. [Id.]
In formulating its views on pretexting, NYCLA relied in part upon a prior opinion of the New York City Bar Association (NYC Bar) revisiting the issue of whether a lawyer could ethically tape a phone conversation without disclosing to the other party that the conversation was being recorded. In its Opinion 2003-2, the NYC Bar concluded that despite many prior opinions rejecting the practice of non-disclosure on a routine basis, it was appropriate for a lawyer to tape conversations without disclosure in the limited circumstances when the taping was intended to achieve a greater societal good. [NYC Bar Op. 2003-2 (modifying NYC Bar Op. 1995-10, NYC Bar Op. 1980-95)]. Significantly, the NYC Bar noted that “it would be difficult, if not impossible, to anticipate and catalog all such circumstances, and that a lawyer should not be subject to professional discipline if he or she has a reasonable basis for believing such circumstances exist.” [Id.]
Recent Pretexting Opinions from Other Jurisdictions
In the last 18 months, at least two courts and one ethics committee have opined on pretexting issues involving non-lawyer investigators. The Supreme Court of Massachusetts and the Philadelphia Bar Association’s Ethics Committee both concluded, on the facts presented to them, that pretexting was inappropriate. By contrast, the Supreme Court of Wisconsin recently upheld dismissal of disciplinary charges against a lawyer who used pretexting to assist in the defense of his client.
The facts of In re Crossen, 450 Mass. 833 (2008) are very complex. I will provide only a rough outline of the highlights here. Attorney Crossen’s clients suspected that the judge presiding over their case was biased against them. In an effort to find evidence of bias and support a motion seeking the judge’s recusal, they tried to obtain information from one of the judge’s ex-law clerks. Crossen’s clients told him that they had hired investigators who conducted an elaborate sham job interview with the ex-law clerk. They claimed that the former clerk had revealed several pieces of information that would support the recusal motion — although they had failed to record the conversation. [Crossen, 450 Mass. at 538-540.] Seeking to obtain a recording of similar statements, Crossen and the investigators then set up a follow-up sham interview in New York (which permits the taping of a conversation by one party to the conversation), to get the ex-law clerk to repeat the information. At that “interview,” the statements by the ex-law clerk on tape were far more equivocal than those which had allegedly been made in the untaped interview. [Id. at 541–544.]
Crossen then confronted the ex-law clerk. From the prior interviews, Crossen had learned that the ex-law clerk had submitted a false letter in support of his bar application. Crossen and those working on his behalf revealed their ruse to the ex-law clerk, and threatened to disclose the clerk’s own fraud in his bar application, if he did not “help” them. The ex-law clerk refused to help, and ultimately, working with the FBI, turned the tables on Crossen, who was brought before the disciplinary authorities. [Id. at 544-553.]
The charges against Crossen as they related to pretexting involved violations of the Massachusetts then-operative DR 1-102(A)(2) and (4), and DR 7-102(A)(5) and (7). The Massachusetts Supreme Court upheld the conclusion that the sham job interviews, together with the secret tape recording, were impermissible conduct involving dishonesty, fraud and misrepresentation. [Crossen, 450 Mass. at 557-559. ]Although it acknowledged that Crossen himself was not involved in the initial sham job interview [Id. at 561], the court nonetheless held that he “voluntarily chose to supplant [another lawyer] as the mastermind behind all of the [later] trickery, whether committed by himself or his agents. For this, he is directly in breach of the disciplinary rules.” [Id.]
Clearly Crossen’s conduct had gone well beyond pretexting into threats of disciplinary action and extortion, as well as intrusion into the confidential judge/law clerk relationship, and this likely affected the court’s ultimate decision that Crossen should be disbarred. For this reason, it may be premature to say that Massachusetts has flatly rejected the use of pretexting. In disciplining Crossen, however, the court rejected a number of defenses he had raised, the most interesting of which was his claim that zealous advocacy compelled his behavior. As to this, the court held: “[t]he duty of zealous advocacy does not extend to engaging in conduct intended to harm the orderly administration of justice, or the public’s perception of unbiased adjudication. A hunch about judicial misconduct does not justify a reckless and unexamined pursuit of that hunch.” [Id. at 564].
More recently, the Philadelphia Bar Association (PBA) weighed in on pretexting in the context of online social networks. [PBA Op. 2009-02 (available on WESTLAW at 2009 WL 934623)]. In particular, the PBA examined whether and to what extent a lawyer could employ a third party to request status as a “friend” on Facebook and MySpace from an unrepresented, 18-year old adverse witness, and then gather evidence from her personal network pages to help impeach her. (“Friend” status on both social networks permits a user to access another user’s online profile and information).
In the matter before the PBA, the inquiring lawyer indicated that the witness had testified at her deposition that she actively used social networks like Facebook and MySpace. The lawyer believed that access to her pages would reveal material relevant to the lawsuit that would impeach her credibility. [PBA Op. 2009-2 at 1.] The inquiring lawyer asked whether it would be ethically appropriate to “ask a third person, someone whose name the witness will not recognize, to go to the [Facebook and MySpace] pages, contact the witness, and seek to ‘friend’ her to obtain access to the information on the pages.” [Id.] Significantly, the inquirer stated that “[t]he third person would state only truthful information, for example, his or her true name,” but would not give any indication of the true motive for accessing the pages — gathering information for possible use antagonistic to the witness. [Id. at 1-2.]
After quickly concluding that the lawyer would be responsible for the third person’s conduct, under either Rule 5.3 (for a nonlawyer) or Rule 5.1 (for a lawyer), the PBA analyzed the conduct against the general misconduct rule (Rule 8.4). The PBA concluded that omitting a highly material fact (i.e., the purpose of the request to “friend” on the social networks) was enough in itself to cause a violation. The inquirer had stated that he believed that the witness (like many other social network users) followed the practice of allowing anyone who asked, to become a “friend”. Accepting this as true, the PBA nonetheless concluded that even if “the witness is exposing herself to risks like that in this case, excusing the deceit on that basis would be improper. Deception is deception, regardless of the victim’s wariness in her interactions on the internet and susceptibility to being deceived.” [Id. at 3.]
After briefly analyzing Rule 4.1, and concluding that the inquirer would also violate that Rule, the PBA discussed, but declined to follow, NY CLA Op. 737. It came down in favor of those court opinions that had taken the view that Rule 8.4’s reach is absolute and that deception is not appropriate, regardless of its ends. [See, e.g., In re Paulter, 47 P.3d 1175 (Col. 2002), ADA violated Rule 8.4 by masquerading as public defender to get multiple murderer to surrender without committing further crimes; In re Gatti, 8 P.3d 966 (Ore. 2000), rejecting exceptions for governmental lawyers or civil rights investigators.]
PBA 2009-02 is significant not only in its seemingly blanket conclusion that deception is inappropriate, but in its rank among an emerging group of ethics opinions on the use (or abuse) of social networks. In my view, social networking is among the most interesting “hot topics” presently facing ethics community. [Editors Note: See From the Advisory Committee on Judicial Ethics :Opinion 08-176 for issues relating to judicial use of social networks].
How would an issue like the one in the PBA opinion come out in New York? Imagine a lawyer who seeks to determine whether a YouTube user is infringing the intellectual property rights of a client, and who decides that the only way to determine whether the infringement is occurring is to “friend” the YouTube user and gain access to its uploaded files. Could the lawyer ask an investigator to create a YouTube account to gather evidence? In such a circumstance, the same sort of societal good addressed in NYCLA Op. 737 and NYC Bar Op. 2003-2 would be the motivation for the pretexting, and presumably there would be no other way to obtain the evidence.
The propriety of the lawyer’s conduct might turn on whether or not the investigator (or the lawyer) violated Rule 4.1 and 8.4 by being untruthful in seeking to “friend” the infringer. PBA 2009-2 concluded that not revealing one’s purpose for seeking access to restricted personal webpages was deceptive conduct, even if the investigator did not tell an outright lie. It is hard to reconcile this conclusion with NYCLA Op. 737 or NYC Bar Op. 2003-02 — and I believe the argument against discipline is stronger here. Under the PBA’s analysis, it could be argued that any time an investigator attempts to purchase a house to investigate possible housing discrimination, without telling the seller his purpose, he would run afoul of Rule 4.1 and Rule 8.4. When could pretexting ever be useful then, if, to comply with the rules, the investigator always had to reveal his purpose?
Wisconsin, in at least one reported decision, has taken a somewhat different view of pretexting. In Office of Lawyer Regulation v. Hurley, Wisconsin Supreme Court, No. 2007AP4 78-D, Feb. 11, 2009 [available at http://www.jenner.com/news/news_item.asp?id=000015013524, visited May 12, 2009] [hereafter “Hurley”], the Wisconsin Supreme Court affirmed a disciplinary referee’s conclusion that an attorney could, in the course of representing a criminal defendant, use at least one particular manner of pretexting to help assist with the defense.
As the court explained, Hurley represented a man accused of a number of sex crimes against a boy — largely resulting from allegedly possessing and sharing child pornography over a computer. Hurley believed that the boy had independently gained possession of the pornographic images and that a search of the boy’s own computer would therefore turn up exculpatory evidence. Hurley concluded that subterfuge would be needed to access the boy’s computer both because he believed the boy would destroy any evidence on the computer if forthrightly asked for access, and because he was “suspicious” of the investigating detective, who he believed was “heavily biased” towards the boy. [Hurley at 2.] Hurley obtained the services of a private investigator, who, together with Hurley, devised a ruse to obtain the boy’s computer. As the court described:
[Hurley’s] investigator sent [boy] a letter on letterhead of a company of which the investigator was a part owner informing [boy] that the company was conducting research into computer usage preferences of students and young adults. The letter informed [boy] he had been selected to receive a new laptop computer free of charge. [Boy] was told in order to receive the new computer he would swap his existing computer for the new model and during the 90-day trial period, his current computer would be stored. [Hurley] instructed the investigator not to approach [boy] unless [boy’s] mother was present, and he instructed the investigator to give [boy] an opportunity to remove anything he wanted from the old computer before making the exchange. [Id.]
The investigator approached the boy (who was 15 at the time), with his mother present, and made the computer exchange as the offer had described. Immediately after obtaining the boy’s computer, the investigator turned it over to a forensic specialist, who found numerous pornographic images. Hurley was subsequently charged with violations of Wisconsin’s Rules 4.1 and 8.4. [Id. at 3.]
In upholding the referee’s determination that Hurley had not violated either rule, the Wisconsin Supreme Court noted that although there was general agreement that a government attorney could engage in this type of pretexting, no one could find any precedent concluding that if a private attorney did the same thing, that attorney was subject to discipline. The court also appeared to find significant some of the reasoning of the disciplinary referee, which it quoted:
Mr. Hurley was faced with a very difficult decision, with concurrent and conflicting obligations: should he zealously defend his client, fulfill his constitutional obligation to provide effective assistance of counsel, and risk breaking a vague ethical rule that, according to the record, had never been enforced in this way? Or should he knowingly fail to represent [defendant] in the manner to which he was entitled and hand him persuasive grounds for appeal, an ethics complaint, and a malpractice claim? The Sixth Amendment seems to have broken the tie for [Hurley]. A man’s liberty was at stake. [Hurley] had to choose, and he chose reasonably, in light of his obligations and the vagueness of the [rules]. [Id. at 3.]
The Hurley case suggests that providing a meaningful defense to a criminal defendant is the type of “societal good” that NYC Bar Op. 2003-02 and NY CLA Op. 737 have found appropriate for pretexting. Could this create an exception so broad that it could easily swallow the rule? In most, if not all instances, a criminal defense lawyer could attempt to justify pretexting on the same grounds that Hurley did, but we must still analyze the underlying conduct against the three other factors established in NYCLA Op. 737. Surely, if an attorney supervised an investigator who engaged in conduct paralleling that in Crossen, for example, it would not matter that it was for the general societal good of providing a meaningful criminal defense. The Hurley case may supply an argument justifying the conduct of one pretexting attorney, expanding on NYC Bar Op. 2003-2 and NYCLA Op. 737, but it may not be an airtight defense to discipline that will apply in all situations.
Jeremy R. Feinberg is the Statewide Special Counsel for Ethics for the New York Unified Court System. He would like to thank his colleague Laura Smith for her insight and suggestions that immeasurably improved this article. The views expressed in this article are those of the author only and are not those of the Office of Court Administration or Unified Court System.
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