NY Ethics Opinion Addresses Lawyer Imposter Accounts

Here is my recent Daily Record column. My past Daily Record articles can be accessed here.

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NY Ethics Opinion Addresses Lawyer Imposter Accounts

Imitation is the sincerest form of flattery—or is it? What if the mimicry in question harms your professional reputation? Even worse, what if your reaction to it, or lack thereof, could negatively impact your license to practice law?

Recently, a New York immigration attorney grappled with those very questions and sought answers from the New York State Bar Association’s Committee on Professional Ethics in Ethics Opinion 1276 (online: https://nysba.org/ethics-opinion-1276-fake-social-media-accounts-offering-legal-services/).

In this case, the inquiring attorney had a very successful online presence. He posted videos to a popular social media platform explaining immigration information and procedural processes to the general public. Eventually, he discovered that someone had been using his name, photo, and immigration videos to create fake accounts on the same social networking site. 

Fearing that legal consumers would be scammed into contacting and possibly trying to hire the unknown imposter, he reported the accounts and requested their removal, to no avail. He also posted videos using his social media account warning his followers about the issue.

After doing so, he was concerned that he could be ethically required to take further action, so he submitted this query to the Committee: “Does a lawyer have any ethical obligations with regard to fake social media accounts in which scammers use the lawyer’s social media videos to attract clients?”

In reaching its determination, the Committee first considered whether any affirmative misconduct on the inquirer’s part had occurred. The Committee answered in the negative, explaining that instead, “he is the victim of misconduct by others (who may not even be lawyers), and those others – over Inquirer’s objection – are engaging in improper conduct. Far from assisting or inducing the scammers to engage in this conduct, Inquirer is trying to impede or stop the scammers and to warn the public about He therefore is not violating Rule 8.4(a)-(c).”

The next issue addressed was whether he acted unethically by failing to respond more assertively to the fake accounts. According to the Committee, three Rules of Professional Conduct require lawyers to report certain types of misconduct. Two of those rules (Rules 3.3(a)(3) and 3.3(b)) were deemed inapplicable since they require lawyers to report behavior occurring “before a tribunal” or “during a proceeding,” respectively. Because the conduct was occurring online and had nothing to do with a pending case, there was no obligation under the rules to report the conduct.

The Committee then examined the third situation outlined in Rule 8.3(a) and concluded that it, too, did not apply to the case at hand: “Rule 8.3(a) provides that a lawyer who “knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer shall report such knowledge to a tribunal or other authority empowered to investigate or act upon such violation.” This provision does not apply here because the Inquirer does not know whether any person creating fake social media accounts is a lawyer.”

Based on its analysis, the Committee concluded that the inquiring attorney had no duty under the Rules to report or otherwise combat the fake accounts. 

While the fake accounts are undoubtedly frustrating, the good news is the lawyer doesn’t have to worry about any ethical fallout. The Committee made it clear—being impersonated online isn’t something the Rules of Professional Conduct require lawyers to address proactively.

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