The National Law Journal recently ran a story about lawyers who employ companies (often over the Internet) to obtain other people’s cell phone records. The article points out that these companies are arguably legal, even though they obtain the cell phone records by pretending to be the cell phone users. Interestingly, the article quotes a law school dean who says that the lawyers “who obtain cellphone records via the Internet are not doing anything illegal or unethical.”
I’ll assume for the sake of argument that these sites are currently legal, but I am somewhat less convinced that attorneys who use them are acting ethically. Rule 4.1 says that lawyers cannot “knowingly make a false statement of material fact or law to a third person.” Moreover, under Rule 5.3, lawyers are responsible for the conduct of the people they employ, including investigators; those people must act in way that “is compatible with the professional obligations of the lawyer.” If you put these two rules together, one could conclude that a lawyer acts unethically by hiring another person to obtain cell phone records through misrepresentation.
On the other hand, there is precedent for allowing lawyers to hire undercover investigators and “testers” as part of a lawyer’s investigation of a case. In those cases, the lawyer’s agents are engaging in a kind of misrepresentation that has frequently been upheld as ethical.
The question, then, is whether the acquisition of cell phone records through misrepresentation crosses the line between ethical investigation and unethical conduct. In my mind, I tentatively think that it does. The lawyers are essentially obtaining private information about individuals from a third party (i.e., cell phone companies), not from the cell phone users themselves. In the typical undercover investigation, there is an attempt to extract information from the affected party directly. Although I think the case is debatable, an attempt to obtain private information from a third party (like a cell phone company) is more troubling than (for example) what a “tester” does. At the very least, I don’t think we should so quickly conclude that lawyers who use these services are acting ethically.
Because I am not particularly committed to this view, I am curious as to what people think about this issue. Comments are welcome.