The Boston Globe is reporting today that there may be a connection between the HP pretexting scandal and a Boston-based law firm that shares office space with a private investigation firm. (The law firm represents "Fortune 500 corporations faced with allegations of waste of assets, procurement fraud, loss of inventory, and theft of proprietary information.") If the law firm was involved in conducting the investigation, there are numerous legal and ethical issues that will arise. Assuming for the sake of argument that pretexting is legal in Massachusetts (might this be why a Massachusetts firm was selected?), the ethics of pretexting is not at all clear.
As I've mentioned previously, 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 directly from the subject of the investigation. 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 necessarily conclude that lawyers who employ these techniques are acting ethically.