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Depending on the circumstances, the pretexting could violate several other Rules.
Pretexting will likely involve the subject matter of the representation because the primary goal is usually to collect evidence against the opposing party.
25) Pretexting necessarily involves withholding this information to obtain the desired evidence or information, and therefore may violate the rule.
Additionally, if the lawyer personally engages in the pretexting activities or is present when they are taking place, he could be required to withdraw from representing the client under Rule 3.
Finally, the pretexting activities may violate Rule 4.
The fact that pretexting implicates so many Rules of Professional Conduct mandates caution to any attorney wishing to engage in it.
Although it appears from the language of the Rules that pretexting activities are likely not permissible, some courts and bar associations recognize implicit exceptions to the rules that permit deceit and misrepresentation in certain narrow circumstances.
Several Bar Opinions recognize that the Rules implicated by pretexting activities contain an implicit exception, but it is quite limited.
The courts permit pretexting activity primarily when objective information was gathered under routine circumstances.
The use of pretexting in certain types of cases is more likely to be permissible than in others.
45) It is significant to note, however, that although the court in In re Friedman (46) determined that the attorney violated the Rules of Professional Responsibility by conducting pretexting activities, it declined to impose any sanctions because the lack of uniformity on the permissibility of pretexting under the Rules afforded the attorney no guidance.
Although this analysis provides a rough sketch of how courts and bar associations view pretexting under the Rules, a large number of jurisdictions have yet to even address the issue.