The big heavy breathing lead story in the Sunday New York Times this week was about the increasing number of government agencies using undercover operations to detect law breakers of all kinds. The Small Business Administration, the IRS, even the U.S. Supreme Court Police have agents hiding badges, blending into crowds and perhaps using assumed identities.
Should lawyers follow this lead? Usually the answer is no, for two reasons.
- Undercover work can quickly veer into areas deemed unethical for lawyers and their agents.
- Going in through the “front door” can often get you information just as good as the secret agent product. Better still, it will be admissible and won’t risk a professional disciplinary hearing.
Ethical rules. Police officers, journalists, and many others are allowed to lie to get what they want. Attorneys are allowed to “dissemble,” but outright lying is frowned upon for attorneys and their agents. The ABA model rules in this area tend to be the same nationwide: Rule 4.1 covers truthfulness in statements to others, and Rule 8.4(c) says that it is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit or misrepresentation.
That’s the reason our firm will not engage in pretexting, the common term for pretending to be someone else. This is the way investigators gain access to phone records, banking and health records, none of which is legal: they pretext, or pretend to be the person who has the right to these records. The Gramm-Leach-Bliley Act covers pretexting to get bank records, the Telephone Records and Privacy Protection Act of 2006 covers the same area for phone records, the Drivers Privacy Protection Act does same for motor vehicle records, and of course there is HIPAA for health records.
The exceptions? Pretexting is generally accepted as ethical in the context of race discrimination in housing and certain intellectual property cases. Process servers get away with it too, in general.
The Front Door. We have found, time and again, that calling people on the phone at a time convenient to them and being truthful about who we are can yield enormously healthy results. Even when our clients tell us we may not identify them, people are still happy to talk to us a lot of the time about former colleagues, places of work, and other topics. This, despite having no clear idea why we want the information.
The main secret in getting people to talk? Be nice to them, be patient, and let them talk without cutting them off. Without a badge or a subpoena, courtesy is the best tool out there.
Being nice to people and telling them the truth about who you are means you run very low risks of getting into ethical trouble. Suppose they want to give you trade secrets? What if they are already represented in the matter and you violate the no-contact rule (rule 4.2)?
If you are pretending to be someone else, you can’t very well ask them whether or not they are represented, and you can’t warn them that you are not looking for them to violate confidentiality agreements. But as yourself, a lawyer or a lawyer’s agent, you can and should do those things before you get down to talking about substantive matters.
In so doing, you will greatly increase the odds that the evidence you get is admissible, and you will avoid a trip to the disciplinary department of your local bar association.