PROFESSIONAL CONDUCT AND LEGAL ETHICS
BY JOSEPH G. MICHAELS
This article discusses the meaning of "lawful investigative activities" in the 2017 amendment to Colorado Rule of Professional Conduct 8.4(c) and recommends core considerations for appropriate investigative activities under the Rule.
A lawyer should be "professionally answerable only for offenses that indicate lack of those characteristics relevant to law practice."1 This is so because "[n]ot every lawyer misstatement poses th[e] risk" of jeopardizing the public's trust in the integrity and trustworthiness of lawyers.2 Thus, a sanction is required only where a deception "reflects adversely on the lawyer's honesty, trustworthiness, or fitness" to practice law.3
The Rule and the 2017 Amendment
Rule 8.4(c) of the Colorado Rules of Professional Conduct (Colo. RPC or Rules) previously provided that "[i]t is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit or misrepresentation."4 But in September 2017, the Colorado Supreme Court amended Rule 8.4(c) to add an exception concerning lawful investigative activities:
It is professional misconduct for a lawyer to:... (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation, except that a lawyer may advise, direct, or supervise others, including clients, law enforcement officers, or investigators, who participate in lawful investigative activities.5
This 2017 amendment reflects the exact language recommended in a majority report by a 2011 subcommittee of the Colorado Supreme Court Standing Committee on the Rules of Professional Conduct, although no action had previously been taken on that proposal.6 Before adopting the amendment, the Colorado Supreme Court received many written comments largely, but not universally, in favor of the rule change.7 At a public hearing, the court heard significant testimony—again, largely championing the change—before adopting the amendment. The amended rule does not include any accompanying comment.
Other states have adopted similar amendments authorizing and defining deception in pursuit of covert activities. Some states' rules authorize lawful investigations involving violations of criminal law or civil or constitutional rights, particularly where the lawyer has a good faith belief that a violation of criminal law or civil or constitutional rights has taken place, is taking place, or will take place in the foreseeable future.10 Other states limit deception exceptions to government lawyers.11 Finally, several states' ethics committees have come to similar conclusions without amending their analogous rules.12
Amended Rule 8.4(c) raises a central question: What is a lawful investigative activity? This article addresses that question by analyzing cases and other authorities from around the country that evaluate both civil and criminal investigations, the investigative objectives, and the personal involvement of attorneys in the investigations. The article identifies circumstances where the investigative activity overstepped the mark and where investigative situations were ethically acceptable, and it synthesizes common threads to suggest standards for assessing investigative activity.
Ultimately, Rule 8.4(c) conveys that a lawyer acts ethically by advising, directing, or supervising—but not personally participating in—otherwise authorized lawful investigations.13 Indeed, proper advice, direction, and supervision prevents harm that otherwise might occur when an investigation exceeds the bounds of lawful investigative activities, which happens, for example, when the investigation
■ unnecessarily intrudes into individuals' privacy,
■ entraps innocent parties,
■ violates an individual's constitutional rights,
■ intercepts confidential or otherwise privileged communications, or
■ negatively impacts a jury's view of a
The proper use of pretext in lawful investigative activities thus promotes trust in the legal profession and allows lawyers to ethically fulfill their obligations to clients and the profession.15In this respect, amended Rule 8.4(c) is consistent with a lawyer's general ethical obligations.16
Pretext as a Necessary Tool
A "commitment to total truthfulness'' can imperil "attorney involvement in undercover investigations and other strategies used ... to root out evil or even to save lives."17For this reason, it should "seem obvious that an attorney's obligation to be truthful does not foreclose her participation in undercover investigations designed to expose wrongdoing."18 Like wise, a lawyer's involvement advising, directing, or supervising a lawful investigative activity can protect an investigation's target by ensuring the investigation honors the target's rights.19
Both the U.S. Supreme Court20 and the Colorado Supreme Court21 have long recognized that deception and pretext are entirely permissible tools of lawful investigations. This is because the constitution does not protect "a wrongdoer's misplaced belief that a person to whom he voluntarily confides his wrongdoing will not reveal it."22
Given the clandestine nature of criminal activity, "[p]rosecutors and police of ten need to use deceit to find the truth."23 Despite highlighting the need for caution, defense scholars have also recognized that "criminal defense lawyers often face the same barriers to uncovering the truth as police and prosecutors" and thus the "trend in favor of openly allowing lawyers to supervise undercover investigations is generally a positive one," in no small part because doing so "not only help [s] uncover the truth, but [is] unlikely ... to generate a negative public reaction."24
This is equally true of discrimination testers and for investigations into civil or consumer-related violations because pretext, deception, and "the use of undercover investigators and discrimination testers is an indispensable means of detecting and proving violations that might otherwise escape discovery or proof."25 The U.S. Supreme Court has unambiguously approved of deception and pretext in the civil context of using housing testers to misrepresent both their identities and purpose to pose as renters or purchasers to gather evidence of and determine whether a landlord or seller is engaging in housing discrimination.26 Even the Federal Trade Commission tasks investigators to "pose as consumers to gather evidence of possible law violations."27
Before Rule 8.4(c) was amended, the Colorado Bar Association Ethics Committee also recognized that a lawyer's involvement in criminal or civil regulatory investigations protects the constitutional rights of the target and ensures adherence to the "high professional and ethical standards" expected of lawyers.28The Federal Trade Commission similarly recognizes that "[a]ttorney engagement in the undercover investigative process increases accountability and helps to ensure that the investigative activities are, in fact, lawful."29Indeed, a lawyer's oversight—supervision, direction, or advice—is preferable to foregoing law enforcement activities or quarantining investigators from their lawyer-supervisors.30
Nevertheless, these considerations only lay the groundwork for using pretext in undercover investigations. The question becomes: What are lawful investigative activities? Many courts across the country have weighed in on what constitutes lawful investigative activities, addressing rules identical or similar to Colo. RPC 8.4(c), or applying relevant ethics opinions or comments. While the following collection of authorities is not exhaustive, these cases provide guidance for handling the unique facts of individual investigations. Undertaking any such investigation requires a full reckoning of the facts and law, as well as the lawyer's professional and ethical obligations.
Lawful Investigative Activities
In Gidatex S.R.L. v. Campaniello Imports, Ltd., the plaintiff's private investigators surreptitiously taped conversations with the defendant's sales associates.31Although the court determined that the sales associates were represented parties under New York's ethics rule analogous to Colo. RPC 4.2, the court determined that no ethical violation occurred because the investigators "did not interview the sales clerks or trick them into making statements they otherwise would not have made. Rather, the investigators merely recorded the normal business routine . . . ."32 More important, the court held that "hiring investigators to pose as consumers is an accepted investigative technique, not a misrepresentation."33
Along with Gidatex...