Entrusting others to collect information for your case means you need to be aware of the possible violations of the law.
By Marshall Waller, Family Lawyer
Pretexting usually takes the form of someone pretending to be someone else, also known as identity theft. For example, when someone sets up a social media account in another person’s name in order to gain access to the other person’s friends and personal information, they think their case can be helped. Whether it be pretending to be someone else in an attempt to gain information, or hiring a private investigator to perform pretexting services, liability attaches.
Cause for Disbarment or License Suspension
Counsel is ethically prohibited from using information obtained through pretexting or risk disciplinary acts, including losing the license to practice law. California Business and Professions Code section 6106 (Moral turpitude, Dishonesty or Corruption Irrespective of Criminal Conviction) provides that an act “involving moral turpitude, dishonesty or corruption,” constitutes a cause for disbarment or license suspension. Although it seems obvious that lawyers cannot knowingly use information that has been illegally obtained without violating their oath as an attorney, far too often we see this type of behavior in court, in depositions and in settlement negotiations.
Another example is when a client uses a Global Positioning System (GPS) device to track and monitor their spouse’s movements and driving behaviours. That client may be prosecuted for stalking under California Penal Code section 637.7, and more important to the representative counsel, Subsection (f) essentially provides for revocation of licensure as a punishment for violation.
Be Aware of Your Information Sources
Also, use care in the acceptance of information from a client, and be aware that such information might have been obtained illegally, either innocently or intentionally. A client that attempts to use information from another’s private emails can suffer serious, even criminal, consequences in court, as hacking into private emails can be found to be an act of domestic violence. Further, if the client brings in communications between a spouse and their lawyer, counsel must immediately stop reviewing it and permanently remove it from the file and office or risk being involved in prohibited activity.
Notable Pretexting Case Examples:
- Nadkarni v. Nadkarni (2009): A former husband that accessed, used and publicly disclosed his former wife’s confidential email was prosecuted for statutorily offensive conduct under subsection (a) of the California Family Code section 6320, under the definition of “abuse.”
- California v. Dunn (2006): A CEO of Hewlett-Packard hired outside investigators to discover a source of internal information leaks by pretexting to obtain the personal and professional phone records of several executives. Upon being caught doing so, the CEO was forced to resign and investigators were sentenced to community service. One investigator was sentenced to three months by the federal government.
- People v. Gibbons (1989): A defendant set up a video camera in his closet to record himself in “the most intimate and private form of communication between two people” with an unsuspecting woman. This offense of pretexting, when confidential communication is divulged, as supported by the privacy act, is a criminal charge prosecuted as a felony or misdemeanor under California’s Penal Code.
- Noble v. Sears, Roebuck (1973): A private investigator, retained by the attorneys, had an employee find the address of a witness through pretexting. The attorneys and private investigator were held liable for invasion of privacy by reason of unreasonably intrusive investigation, as covered under California’s “Peeping Tom Statute.”
The moral of this story is to exercise caution when managing and processing cases. The license to practice law is obtained with difficulty and is easily lost. Care must be given to play by the rules and not get caught up with a client that doesn’t.
This article has been condensed. For the full version click here.
Marshall Waller is a Certified Family Law Specialist with Feinberg & Waller in Beverly Hills and Calabasas, CA. He has gained a reputation as a dynamic and entertaining speaker and has spoken nationally and locally to trade, civic, and private organizations. www.feinbergwaller.com