The Ethical Implications of How You Obtain Evidence: Avoid “Pretexting” (And Also Everything Else Harvey Weinstein Did)

This week, the New Yorker ran an article, “Harvey Weinstein’s Army of Spies,” which talked about the ways that the embattled movie producer investigated the women making sexual harassment claims against him.

One of the stranger aspects, however, is that he used his lawyer, David Boies, to employ these investigators, who later pretended to be victims in order to gain the trust and sympathy of the targeted victims.

Sure, we can be appalled at the extreme measures employed, but, when his lawyer puts his signature on any aspect of it, it becomes even more troubling.

This blog isn’t about Harvey Weinstein-level counter-intelligence, but this type of thing occasionally comes up in real life law practice, particularly in domestic relations.

This is referred to as “pretexting,” and it involves some sort of ruse or deception to obtain information. Frequently, it will entail the creation of a fake social media accounts to “friend” or communicate with a witness or opposing party.

This is unethical behavior and, in Tennessee, violates the Rules of Professional Responsibility. Rule 4.1 provides that “a lawyer shall not knowingly make a false statement of material fact or law to a third person.” In addition to lawyer professional disciplinary proceedings, such actions can result in criminal or civil liability under the Gramm-Leach-Bliley Act and other mail/wire fraud statutes.

But, let’s be clear: Information that a person publicly posts online is perfectly ripe for the taking and use, including public posts and pictures. Similarly, information that a person privately posts but which a party has knowing permission to access can also be used.

The key is that a lawyer–or an investigator working for the lawyer–should not use deception or lie in order to obtain that access.  But, short of that, if it’s out there and it’s useful, download it, copy it, save it, and use it.

As an aside–and totally appropriate for this topic–I’ll be presenting the topic “Ethical Issues: Using Social Media/The Evidentiary Role of Technology,” at the Family Law Conference for Tennessee Practitioners in December 2017.

 

 

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Tennessee Law on Sheriff’s Sales Can be Confusing, but Worth the Work

A very long time ago, I wrote that judgment collections may require patience but that, fortunately, Tennessee judgments are valid for ten years.

So, while you may be dealing with a debtor without any money now, keep in mind that this economy can shift for the good, as quick as it went bad. In collections, patience can lead to money.

That was in July 2010, and, man-oh-man, has Nashville’s economy rebounded. If you’ve followed my other advice, way back when, you have already ordered a certified copy of your judgment and recorded it as a lien in the real property records.

So, fast-forward to 2017. If you take that old judgment lien and add in 7-8 years’ worth of property appreciation, maybe it’s time for you to consider conducting a sheriff’s sale of real property pursuant to your judgment lien.

In Tennessee, Sheriff’s Sales are governed by Tenn. R. Civ. P. 69.07(4) and Tenn. Code Ann. § 26-5-101, et. seq. At a recent seminar, I was asked which of the two lines of authority controlled the process: Rule 69; or the Tennessee Code?

The correct answer is, unfortunately, that nobody is entirely sure. So, I guess, the answer is that both control the process.

As a practical matter, when I’m conducting a sheriff’s sale of real property to enforce a judgment, I follow all of the requirements under Rule 69 and also under Tenn. Code Ann. § 26-5-101. Sure, that makes for a lot of “hoops” to jump through, but the hoops are never contradictory.

Given the appreciation in property values, sheriff’s sales can be a very effective collection method.