We recently came across a Huffington Post story about police in Richmond, Virginia using the dating website okcupid.com to make an arrest. A warrant was out for the arrest of Ryan Covington for failure to appear in court on a charge of breaking and entering into a vehicle. The officer in Virginia found Covington’s okcupid profile online and created a fake dating profile under the name “Sasha.” “Sasha” messaged back and forth with Covington and ulti
mately set up a date. When Covington arrived at the date looking for Sasha, he was instead met with the officer who arrested him on the spot—not the ideal first date situation.
Law enforcement has much more leeway with their tactics than lawyers and investigators do. We could blog for days about why we never use pretexts in our investigations, but this case brings up a form of pretexting that we aren’t often asked to do. Usually, our clients want us to use pretexting to gain access to bank or phone records. As we’ve blogged about here and here, both scenarios are illegal under federal statutes. However, using pretexting in the form of a fake profile on a dating website might help gather other types of information. For instance, in the matrimonial context, you might get answers to questions such as, who employs your debtor or where he/she is living. You might even gather evidence that tends to show that he/she cheated.
All of that said, pretexting in this context is a bad idea and, at the very least, unethical. As attorneys, we have to be very cautious not to breach ethics codes which, in all states, forbid attorneys from making false statements, or from using others to make false statements to elicit information. On top of that, attorneys and their agents, including investigators, have to make sure not to violate the “no contact rule,” that is, not to contact represented parties involved in a litigation.
But what if you’re neither an attorney nor an investigator acting at the behest of an attorney? You may think that the rules don’t apply to you, but remember, while engaged in litigation you are going to want to exhibit “best behavior” in front of the judge. A judge will probably not like to hear that you created a fake online dating profile to draw information from your soon-to-be ex, but a judge will want to hear if your spouse is refusing to give you information to which you are entitled.
Additionally, we can’t stress enough the importance of asking the right questions during the court’s discovery process and, even before that, doing enough research to know what the right questions are. As investigators, we’re often able to legally and ethically get the information you need through use of our proprietary databases, interviewing (without a pretext) and review of the public record. We can put you in the right position to get the discovery you want without placing the law or ethics at issue.