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Letter to Ethics Board Concerning Attorneys' Use of Pretexting

February 21, 2006

Re: Ethical Concerns Regarding Attorneys' Use of Private Investigators and Pretexting

Dear State Bar Ethics Committee:

We are writing on behalf of the Electronic Privacy Information Center (EPIC). EPIC is a not-for-profit research center that focuses on promoting personal privacy.

In July 2005, EPIC began a campaign to end the practice of "pretexting."[1] Pretexting is the use of impersonation or fraud to trick another person into releasing personal information. Through pretexting, online data brokers and investigators offer to obtain private calling records, the identities of individuals who use dating services, and the identities of people who use P.O. Boxes. Many of these services are advertised online for any member of the public to buy data on others.

EPIC identified dozens of websites that offered to obtain personal information through pretexting, and submitted a list of 40 such sites to the Federal Trade Commission for investigation.[2] We also petitioned the Federal Communications Commission to protect individuals' phone records from pretexting.[3]

In the course of investigating pretexting, it has become increasingly clear that attorneys are major consumers of pretexting services. In this letter, we request that appropriate action be taken to ensure that attorneys in your state are not employing investigators or other companies to engage in pretexting or other fraud. We believe that pretexting is incompatible with ABA Model Rules 1.2, 3.4, 4.1, 4.4, and 8.4. We provide documentation below of the mounting evidence showing that attorneys are purchasing the services of pretexters, and urge you to take action to prevent attorneys from using pretexting services.

Attorneys Are Purchasing Private Records Through Pretexting

There is mounting evidence that attorneys are top consumers of pretexting services that acquire private records through impersonation, fraud, or false pretenses. In fact, the operators of these sites offering records claim that attorneys are employing their services:

In an e-mail sent to the Tribune, the manager of one of the Web sites--www.abika.com--defended the business as a legitimate investigative tool for people trying to make sense of their personal lives or track down someone who owes them money. The site recently stopped selling cell phone records, wrote Jay Patel, whose business is registered in Wyoming.
Patel's Web site even contended it could deliver the location from which cell phone calls were being made. Wireless phone companies can produce that data through federally mandated GPS technology that most cell phones have.
"Spouses, girlfriends and boyfriends use it to review and understand their significant others," Patel wrote. "Bail bond agents use it to locate fugitives, lawyers use it for their investigations to locate witnesses and other relevant info."
Noah Wieder, president of www.bestpeoplesearch.com, said he hired former law enforcement officials to collect cell phone records for his customers, mostly private investigators and the occasional doubting spouse referred to him by a lawyer.[4]

A story in the National Law Journal focused directly on attorneys' purchase of phone records:

Attorneys are among the top customers of the controversial Web sites [selling phone records acquired through pretexting], according to private investigators, privacy advocates and Web site operators who sell the phone records.
"Let's put it this way, the legal profession is keeping it alive," said Rob Douglas, a former private eye turned security consultant who has helped the Federal Trade Commission (FTC) investigate and prosecute online operators that sell phone records.
"I've investigated them with the federal government and in private lawsuits . . . and in every single case, the overwhelming majority of users of these companies are attorneys," Douglas said.
These attorneys include divorce lawyers, who want to know who feuding spouses are talking to; business lawyers, who want to know who their clients' competitors are talking to; and employment lawyers, who want to know if employees are selling any trade secrets.
[]
Given all the controversy surrounding the sale of cellphone records, attorneys were reluctant to comment on the subject. Of the more than a dozen divorce, business and criminal defense attorneys contacted for this story, none said they used the tactic. Most wouldn't even talk about the subject. One lawyer said, "Good luck finding anyone to admit to it."[5]

These revelations concerning attorneys hiring private investigators to perform illegal services comes at the same time that the government has levied a 110-count indictment against a Los Angeles investigator who worked for many attorneys. Anthony Pellicano and six others were accused earlier this month of conspiracy and blackmail in a case where the investigator obtained private records in the course of litigation:

The 110-count federal indictment outlines a complicated web of payoffs to police, high-tech eavesdropping and other skullduggery. Prosecutors allege that Pellicano scoured confidential communications and law enforcement databases for scandalous details that would scare off lawsuits or provide his clients with the upper hand in courtroom battles.
[]
Although no lawyers or marquee Hollywood celebrities were named, the indictment alleges that Pellicano and his clients used the information to secure "a tactical advantage in litigation by learning their opponents' plans, strategies, perceived strengths and weaknesses, settlement positions and other confidential information."
[]
The indictment describes Pellicano as the conspiracy's organizer and leader and charges that the trio used wiretaps, protected computers, bribery, identity theft and obstruction to further the Hollywood private eye's reputation and ongoing relationship with "lucrative clients, including entertainment celebrities and executives, attorneys and law firms."[6]

Last week, a California attorney was indicted for allegedly hiring Pellicano to place wiretaps.[7]

Attorneys' Use of Pretexting Through Agents is Unethical

We believe that attorneys who hire investigators or other companies to engage in pretexting violate ethical norms. Attorneys have a duty to be zealous advocates of their clients, but must operate within the bounds of the law.[8] An attorney cannot hire others to operate outside the bounds of the law, and we believe that this practice of hiring pretexters or counseling clients to hire them implicates ABA Model Rules 1.2, 3.4, 4.1, 4.4, and 8.4. We accordingly urge your ethics committee to review the attorneys' use of pretexting under applicable state versions of these model ethical rules.

Model Rule 1.2 prohibits attorneys from advising their clients to engage in fraudulent behavior:

(d) A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law.

Model Rule 3.4 specifies that attorneys shall not perpetuate fraud:

A lawyer shall not:
(b) A lawyer who represents a client in an adjudicative proceeding and who knows that a person intends to engage, is engaging or has engaged in criminal or fraudulent conduct related to the proceeding shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal.

Model Rule 4.1 bars attorneys from lying to others in the course of representation:

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;

Model Rule 4.4 prohibits attorneys from gaining evidence in a way that violates the rights of another:

(a) In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person.

Finally, Model Rule 8.4 prohibits a wide range of behavior related to misrepresentation and fraud, and bars attorneys from hiring agents to engage in unethical practices:

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;

State Ethical Boards Must Take Action to Protect the Integrity of the Profession

We urge you to take action to review these practices under the ethical rules of your state. Pretexting involves using fraud to trick a company into releasing private personal information. We believe that hiring investigators or other services to engage in pretexting implicates ABA Model Rules 1.2, 3.4, 4.1, 4.4, and 8.4. We urge you to analyze the practice of pretexting under the ethical rules in force in your State.

We realize that attorneys may unwitting participants in this practice. They may hire investigators to locate witnesses or perform other functions without being aware that pretexting was being employed. Accordingly, issuing an advisory opinion or highlighting this issue in communications to members of the Bar may be appropriate action to addressing use of pretexting.

Sincerely,


Chris Jay Hoofnagle
Director
Electronic Privacy Information Center West Coast Office
944 Market St. #709
San Francisco, CA 94102
415-981-6400
Hoofnagle@epic.org


[1] EPIC maintains an archive on pretexting online at http://epic.org/privacy/iei/.

[2] In re Intelligent E-Commerce, Inc, Jul. 8, 2005, available at http://epic.org/privacy/iei/ftccomplaint.html.

[3] Petition of EPIC for Enhanced Security and Authentication Standards, In re Implementation of the Telecommunications Act of 1996, CC Docket No. 96-115, available at http://www.epic.org/privacy/iei/cpnipet.html.

[4] Aamer Madhani and Liam Ford, Brokers of phone records targeted Illinois files suit, joins fight to bar practice, Chicago Tribune, Jan. 21, 2006, available at http://www.chicagotribune.com/news/nationworld/chi-0601210074jan21,1,6840972.story?coll=chi-newsnationworld-hed&ctrack=1&cset=true.

[5] Tresa Baldas, Who surfs for cell records? Lawyers, National Law Journal, Feb. 2, 2006, available at http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1138874715046. See also, Matt Richtel & Ken Belson, House Panel to Press Cellphone Industry on Improving Protection of Customer Records, New York Times, Feb. 1, 2006, available at http://www.nytimes.com/2006/02/01/technology/01cell.html; Dave Gussow, Verizon lawsuit says phony callers are committing fraud, St. Petersburg Times, Jan. 30, 2006, available at ttp://www.sptimes.com/2006/01/30/Technology/Verizon_lawsuit_says_.shtml.

[6] Greg Krikorian and Andrew Blankstein, Pellicano and 6 Others Are Indicted, Los Angeles Times, Feb. 7, 2006, available at http://www.latimes.com/news/local/la-me-pellicano7feb07,0,5599372.st

ory?coll=la-home-headlines.

[7] Greg Risling, Kerkorian attorney indicted in Hollywood wiretapping scandal, San Francisco Chronicle, Feb. 16, 2006, available at http://sfgate.com/cgi-bin/article.cgi?f=/n/a/2006/02/15/state/n133146S99.DTL.

[8] ABA Model Rule, Preamble at 9.


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Last Updated: February 21, 2006
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