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oral communications transmitions

Lawyers, as well as investigators under the direction of counsel, may find themselves engaging in ethically dubious actions in intercepting wire or oral communications transmitted by mobile devices, or extracting digital files from or through a digital device. The conduct may involve acts that are affirmatively misleading, such as intentionally dissembling about one’s personal or professional status or falsely claiming ownership or right of access to the device or the information stored on it. Such conduct could constitute a violation of Rule which prohibits lawyers from knowingly making a false statement of material fact to third persons. Employing software and other technology to surreptitiously capture and record digital information, or extracting digital files from a device, could potentially violate Rule (respect for rights of third persons) which prohibits a lawyer form “obtaining evidence that violates the legal rights of [a third person].” Similarly, such conduct might violate Rule 3.4 (fairness to opposing party and counsel) and that rule’s prohibition against “knowingly engag[ing] in other illegal conduct contrary to these Rules” found in Rule 3.4(a)(6). Other potential ethical violations include Rule 8.4(c), which prohibits engaging in conduct that involves dishonesty, fraud, deceit, or misrepresentation, and Rule 8.4(d), which prohibits conduct that is prejudicial to the administration of justice.

In each case, counsel should ask what legal authority exists to (1) support the collection of the evidence from, or through, a given digital device, and (2) to thereafter make use of the harvested information. No matter how great the temptation, counsel should not act first (to see what is there) and then think later what to do with it (if the evidence was properly obtained). The prudent lawyer will want to consider whether the contemplated harvesting activity itself crosses any ethical lines.