Ethics of Pretexting in a Cyber World
![handle is hein.journals/mcglr41 and id is 275 raw text is: Ethics of Pretexting in a Cyber World
Steven C. Bennett*
Lawyers are investigators. They require information to counsel clients about
their rights and obligations. In many instances, important information is in the
hands of third parties. When such information must be acquired without alerting
the third party (such as a competitor, an adverse party in litigation, or a
disgruntled employee), lawyers may gather information anonymously. For
sources such as public records and public websites, the anonymous gathering of
information typically presents no major ethics issues.'
But what if the lawyer seeks to obtain information by stealth,
misrepresenting (or failing to accurately represent) the purpose of a contact with
a third party? Such stealthy contact, by a lawyer or an intermediary, such as a
private investigator, is called pretexting and presents unique ethical
challenges.2 This Article outlines some of those challenges and suggests some
directions that ethics and professional responsibility law can take in an
increasingly interconnected yet anonymous cyber world.3
* Steven C. Bennett is a partner at Jones Day in New York and is Chairman of the firm's E-Discovery
Committee. The views expressed in this Article are solely those of the author and should not be attributed to
Jones Day or its clients.
1. See, e.g., Jason Boulette & Tanya DeMent, Ethical Considerations for Blog-Related Discovery, 5
SHIDLER J.L. COM. & TECH. 1 (2008), available at http://www.lctjournal.washington.edu/Vol5/aOloulette
DeMent.html (on file with the McGeorge Law Review) (suggesting that passive review of a blog is
comparable to review of an unprivileged document voluntarily produced by [a] party).
2. The precise definition of pretexting may vary with the context of a matter. The Federal Trade
Commission (FTC), for example, applied the Gramm-Leach-Bliley Act and narrowly defined pretexting to
include only the use of false pretenses to obtain personal financial information, such as bank balances. See Fed.
Trade Comm'n (FTC), The Gramm-Leach-Bliley Act, http://www.ftc.gov/privacy/privacyinitiatives/
retexting.html (last visited Dec. 30, 2009) (on file with the McGeorge Law Review). In most instances and for
purposes of this Article, the pretexting circumstance involves an effort by counsel, through some form of
deception or deliberate withholding of information, to obtain information relevant to the investigation. See
generally Gerald B. Lefcourt, Fighting Fire with Fire: Private Attorneys Using the Same Investigative
Techniques as Government Attorneys: The Ethical and Legal Considerations for Attorneys Conducting
Investigations, 36 HOFSTRA L. REV. 397 (2007).
3. This Article does not address other sources of law, such as tort and criminal law, which may bear on
the practice of pretexting. The recent pretexting incident involving Hewlett-Packard, for example, led to
litigation and the passage of both federal and California statutes outlawing the receipt of telephone records
through pretexting. See Kevin Poulsen, First 'Pretexting' Charges Filed Under Law Passed After HP Spy
Scandal, WIRED.COM, Jan. 9, 2009, http://www.wired.com/threatlevel2009/01l/first-pretextinl (on file with the
McGeorge Law Review); Matt Richtel, Hewlett-Packard Settles 'Pretexting' Suit, N.Y. TIMES, Feb. 14, 2008, at
C-5, available at http://www.nytimes.comI2008/02/14/business/worldbusiness/l4iht-hp.1.10033982.html; Bill
Signed to Ban Pretexting Inside Bay Area (California), OAKLAND TRIB., Oct. 1, 2006, available at
http://findarticles.com/p/articles/nmi-qn4l 76/is-20061001/ai-n l6760833/?tag=content;col l/ai-n 16760833/?tag
=content;coll.
Moreover, although the standard for a criminal conviction is likely higher than for an ethical sanction,
online pretexting may lead to criminal charges in addition to charges for ethical violations under existing law.
See, e.g., U.S. v. Drew, 259 F.R.D. 449 (C.D. Cal. 2009) (overturning a conviction for pretexting under the
Computer Fraud and Abuse Act because of vagueness). Drew is an exceptional case, because pretexting was
part of a pattern of cyber-bullying that led to the victim's suicide. Id. at 452. However, Drew points the way to](ViewImageLocal?handle=hein.journals/mcglr41&div=13&collection=journals&method=preview&ext=.png&size=3)
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