In an open letter sent to bar ethics boards across the nation this week, the Electronic Privacy Information Center (EPIC) urged these governing bodies to help stop the law profession's rampant use of unethical data collection services.
These services use impersonation or other forms of fraud, a practice commonly referred to as "pretexting," to obtain private information. According to EPIC, the number of pretexting services is on the rise, with attorneys largely funding these enterprises.
"There is mounting evidence that attorneys are top consumers of pretexting services that acquire private records through impersonation, fraud or false pretenses," the letter said. "In fact, the operators of these sites offering records claim that attorneys are employing their services."
EPIC began a campaign against the use of pretexting last July. The privacy protection group found that private investigators and online data brokers use pretexting to acquire information such as calling records, the identities of individuals who use dating services and the identities of people who use P.O. boxes. Much of this business is advertised on the web, and already EPIC has reported 40 different pretexting service sites to the Federal Trade Commission for investigation, the letter said.
Pretexting for financial information has been clearly illegal since the passage of GLBA. The legality of pretexting for other information such as calling records still remains unclear, though FTC officials went on record in February saying that they believe that pretexting for phone records is an illegal practice. Lawmakers from both the U.S. House of Representatives and the Senate hope to make the issue more clear-cut. In the past two months, they have circulated multiple bills designed to combat pretexting.
Irrespective of the passage of any of these measures, the use of such services by attorneys should constitute a breach in ethical norms, the EPIC letter said. American Bar Association model rules clearly state that lawyers are not to advise clients to engage in fraudulent behavior, are not to perpetuate fraud themselves, are not to lie during the course of representation and are not to gain evidence in a way that violates the rights of another. Additionally, the rules specify that attorney's can not hire someone else on their behalf that engages in any of the above unethical behavior.
"We believe that this practice of hiring pretexters or counseling clients to hire them implicates ABA model rules," the letter said. "We accordingly urge your ethics committee to review the attorneys' use of pretexting under applicable state versions of these model ethical rules."