While pointing out that there is no nationwide consensus on the ethical implications of pretexting, the Association noted that Rules must be "applied in the light of reason and experience," and that the limited use of pretexting "is most consistent with the overall purposes of the Disciplinary Rules and conforms to professional norms and societal expectations." (75) This opinion is specifically limited to non-government attorneys supervising investigators, however, and does not address whether government attorneys may direct investigations by law enforcement personnel or whether attorneys may directly engage in pretexting activities.
One issue to note, however, is that every amendment or rule listed here permits pretexting; it does not appear that any bar prohibiting pretexting has made that clear in any rule.
In its analysis of pretexting, the referee in In re Hurley (77) noted the challenges facing attorneys in the criminal context: Mr.
Although pretexting occurs in other areas of the law and does not always implicate constitutional rights, it has a direct impact on the public's perception of the legal profession.
It is clear that more guidance is needed for attorneys that wish to conduct pretexting activities on the internet.
Perhaps the use of pretexting in certain types of cases is easier to justify based on policy considerations, but as history shows, situations change.
If a person is trying to understand when his Facebook page may be accessed for evidentiary purposes, this standard does nothing to clarify when or how pretexting may be utilized.
If pretexting is to be permissible under the Rules, it should be expressly permissible.
The remaining analysis boils down to whether pretexting should be uniformly permissible under the Rules, and if so, under what circumstances.
If the rules of evidence need to be improved to provide better tools for discovery, then perhaps that should be addressed so that pretexting is not necessary.
182, 184 (2008) (defining "pretexting" as "a simple investigative tool: The investigator approaches the target and, under the 'pretext' of being someone else, obtains information that the target would ordinarily provide to such a person.