Ezel / Ethics Opinions / NYSBA
NYSBA 2024-10-23

Does a lawyer have any ethical duty to act when unknown scammers create fake social media accounts impersonating the lawyer to defraud the public?

Short answer: No. The opinion concludes a lawyer who knows that an unknown person is creating fake social media accounts to scam the public has no duty under the Rules to take any action against the fake accounts, because the lawyer is the victim and the reporting rules do not apply on these facts.
Disclaimer: Advisory only. Not binding precedent.
About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked at the bottom of this page) is the authoritative source for any reliance.

NYSBA Ethics Opinion 1276: When Scammers Impersonate a Lawyer Online

Short answer: The opinion concludes that a lawyer who knows that an unknown or unidentified person is creating fake social media accounts to scam the public has no duty under the Rules of Professional Conduct to take any action to combat the fake accounts.

Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the New York State Bar Association's view of New York's Rules of Professional Conduct and are persuasive authority. This summary is for research purposes only and is not legal advice. Verify current rules before acting on any specific guidance.

About this page: The plain-English summary and Q&A below were written by Ezel based on the official opinion. We do not reproduce the opinion text on this page; follow the linked source for the official text, which controls.

Plain-English summary

The inquirer is an immigration lawyer who posts videos explaining the immigration process on his social media account. Unknown imposters have used his name, photo, and videos to create fake accounts on the same platform, tricking people into paying supposed legal fees to the scammers while receiving no services. The inquirer has reported the fake accounts to the platform (which has not removed them) and posted warnings, and asks whether he must do more.

The opinion first considers whether the inquirer is committing any affirmative misconduct under Rule 8.4(a)-(c) and concludes he is not: he is the victim of others' misconduct and is trying to stop the scammers and warn the public, so he is not violating Rule 8.4. The opinion then considers whether any rule requires him to act, and identifies the three reporting provisions that might apply, concluding none does on these facts. Rule 3.3(a)(3) (remedial measures for false evidence offered to a tribunal) does not apply because the inquirer has not offered the fake videos to a tribunal. Rule 3.3(b) (remedial measures where a person engages in criminal or fraudulent conduct related to a proceeding) does not apply because the scammers' conduct is not related to any pending proceeding. Rule 8.3(a) (reporting another lawyer's misconduct) does not apply because the inquirer does not know whether the imposters are lawyers.

The opinion concludes that, because none of those provisions applies and no other rule requires action, the lawyer has no duty under the Rules to combat the fake accounts.

In practice

Under this opinion, a lawyer who is impersonated by unknown social media scammers, and who does not know whether they are lawyers, has no duty under the Rules to take action against the fake accounts. Per the opinion, the reporting provisions in Rules 3.3(a)(3), 3.3(b), and 8.3(a) do not apply on these facts, and the lawyer's own conduct in reporting the accounts and warning the public does not violate Rule 8.4.

Common questions

Q: Does an impersonated lawyer have to take legal or other action against the fake accounts?

A: Per the opinion, no. The lawyer who knows an unknown person is running fake accounts to scam the public has no duty under the Rules to combat them.

Q: Does the duty to report misconduct under Rule 8.3 apply to the scammers?

A: Per the opinion, no, because Rule 8.3(a) applies to known violations by another lawyer, and the inquirer does not know whether the imposters are lawyers.

Q: Could the lawyer be violating any rule by being impersonated?

A: Per the opinion, no. The lawyer is the victim of others' misconduct and is trying to stop it and warn the public, so he is not violating Rule 8.4(a)-(c).

Background and rules framework

The opinion interprets New York Rule 8.4(a)-(c) (misconduct), Rule 3.3(a)(3) and (b) (candor and remedial measures before a tribunal), and Rule 8.3(a) (reporting another lawyer's misconduct). These correspond to ABA Model Rules 8.4, 3.3, and 8.3.

Citations and references

Rules of Professional Conduct:

  • New York Rules of Professional Conduct 3.3(a)(3) & (b), 8.3(a), 8.4(a)-(c)
  • ABA Model Rules 3.3, 8.3, 8.4 (analogues)

See also

Source