Deception in Undercover Investigations: Conduct-based vs. Status-based Ethical Analysis

• Publication year: 2008

UNIVERSITY OF PUGET SOUND LAW REVIEWVolume 32, No. 1FALL 2008

Deception in Undercover Investigations: Conduct-Based vs. Status-Based Ethical Analysis

Barry R. Temkinf(fn*)

I. Introduction

The ABA Model Rules of Professional Conduct (Model Rules), by their terms, bar lawyers from engaging in conduct involving "dishonesty, fraud, deceit or misrepresentation."(fn1) The Model Rules also prevent lawyers from circumventing the rules by proxy. Yet, lawyers throughout the United States supervise undercover investigators who misrepresent their identities in order to garner admissions or other evidence from unsuspecting would-be adversaries. These adversaries believe that they are dealing with members of the general public, not investigators who plan to help arrest or sue them.

There has been some debate about whether lawyer involvement in undercover deception is or should be barred by the literal language of Model Rule 8.4, which proscribes deceit and dishonesty.(fn2) There is a tension between the language of the Model Rules and the actual practice in most jurisdictions, in which government lawyers, especially prosecutors, regularly supervise undercover investigations. Lawyers who supervise undercover investigations employ deception, albeit, generally speaking, indirectly through investigators. A federal prosecutor supervising a criminal terrorism investigation approves of the use of a false name and identity by the undercover investigator. A civil rights attorney preparing to bring a civil housing discrimination case assists an undercover investigator in assuming a false name and identity that is used to deceive the target of the investigation, who presumably would not make damaging admissions to a fully-disclosed agent of a civil rights organization.

A few recent examples help to illustrate the need for more guidance in attorney-supervised investigations. The Hewlett-Packard scandal directed public attention not only on pretexting,(fn3) but on the whole panoply of undercover investigations, as well as attorneys' responsibility for the techniques utilized by investigators under the attorneys' supervision.(fn4) In the course of investigating corporate leaks to the press from a member of the Hewlett-Packard board of directors, HP in-house counsel Kevin Hun-saker approved the use of pretexting by investigators, who then obtained confidential phone records not only from the suspected board members, but also from nine journalists and their relatives.(fn5) The investigators posed as the target board members in order to illegally obtain confidential telephone records.(fn6)

Another illustration of attorney supervision of undercover investigations arises from a recent Wisconsin case.(fn7) A February 2008 decision by a Wisconsin referee exonerated criminal defense lawyer Stephen Hurley, whose investigator used a ruse to trick a teenage boy into exchanging his computer for a new laptop.(fn8) Hurley represented a suspect accused of child molestation.(fn9) His investigator, using a false pretense, tricked the complaining witness into surrendering his computer, which contained evidence of pornography obtained from other sources.(fn10) The Wisconsin Office of Lawyer Regulation filed an ethics complaint against Hurley alleging that the investigation involved fraud, deception and dishonesty.(fn11) But the special referee dismissed the charges, noting that the ethics rule was vague, ill-defined, and in any event trumped by the lawyer's duty to his client.(fn12) Moreover, it was the investigator, not the lawyer, who engaged in deception. The court-appointed referee, noting that "[a] man's liberty was at stake," stated that the lawyer's conduct, while deceitful, was not unethical.(fn13)

Some courts and commentators have opined that deception is simply never permitted by attorneys under any circumstances.(fn14) In contrast, other jurisdictions have amended their ethics rules to permit lawyers to supervise undercover investigations, but only government lawyers, and only in criminal prosecutions.(fn15) A few authorities have held that deceptive undercover investigative techniques are permitted to combat discrimination and to enforce trademarks.(fn16) This Article argues that it is inherently subjective and value-laden to posit that one substantive subject area of the law justifies indirect deception, while another does not. This Article recommends that ethics rules should focus on the conduct of the attorney, rather than on the subject matter of the specific case or on the status of the attorney's client.

For the sake of this Article, attorney supervision of undercover investigations will be analyzed along two conceptual axes. Axis 1 considers the nature of the substantive subject matter of the underlying claim (e.g., trademark or criminal) and the status of the attorney (public vs. private or plaintiff vs. defense). This approach will be called the "status-based axis."(fn17) Axis 2 focuses on the conduct of the attorney and investigator, as the attorney's agent. The Axis 2 factors include the following: the extent of the misrepresentation; whether the deceit is direct or indirect; the existence of other, alternative methods of obtaining the same evidence; and whether the questioned conduct violates another ethics rule or principle of substantive law. Such rules include the "no-contact rule" of Model Rule 4.2 and the various laws and regulations regarding pretexting and breach of privacy, some of which were adopted in the wake of the 2006 Hewlett-Packard corporate scandal.(fn18)

The development of status-based exceptions to ABA Model Rule 8.4-exceptions based on the status of the attorney or the client's underlying substantive claim-raises interesting and troubling issues. Where will the line be drawn? Should attorney-supervised undercover investigations be limited to certain substantive areas of practice? If a prosecutor can employ an undercover investigator to deceive others in a death penalty case, perhaps the defense attorney in the same case should be permitted to instruct an investigator to take the same liberties with the truth. Arguably, preventing the conviction of an innocent defendant is as worthy a goal as securing the conviction of a guilty suspect. The same types of questions can be posed for attorneys defending intellectual property and civil rights cases for whom there has been little, if any, authority justifying deceptive investigations. By the same token, we can compare other social values, such as protecting the environment, preventing workplace accidents, or even saving human life, with the values that justify deception in trademark and discrimination cases. If attorneys can indirectly deceive in order to protect a property right, then why not permit lying to protect our environment or to rectify a less lofty civil wrong?

Part II of this Article briefly sketches the overall ethical framework under the ABA Model Rules and the ABA Model Code of Professional Responsibility, including the proscription on deceit and misrepresentation in Model Rule 8.4 and the ban on attorney contact with represented adverse parties in Model Rule 4.2. Part III describes the jurisdictions that have declined to create status-based exceptions to Model Rule 8.4, and the nationwide uproar created when the Oregon Supreme Court initially refused to permit undercover investigations involving any deception-including investigations by law enforcement personnel. That Part will also trace the subsequent adoption of a new rule in Oregon, which now permits all attorneys, regardless of public or private status, to supervise investigations involving deceit, provided that there is evidence of underlying unlawful conduct. Part IV describes the development of status-based exceptions, which have authorized government lawyers to supervise undercover criminal investigations and have permitted plaintiffs' lawyers to dispatch testers in intellectual property and civil rights cases.

Part V explains efforts by various state bars to reconcile the conflict between the literal language of the Model Rules and the common practice, in which lawyers indeed have participated in undercover investigations involving trickery and deception. Part VI argues that status-based distinctions have outlived their purpose and should be reconsidered. Finally, Part VII suggests a number of conduct-based factors that should be used to analyze the conduct of all lawyers, regardless of an attorney's status or nature of the client's substantive legal claim.

II. ABA Model Rules Framework

A. Deceit and Dishonesty

Our analysis begins with the ABA Model Rules of Professional Conduct, which outline lawyers' responsibilities to their clients, to tribunals, and to others. The Model Rules proscribe deception in Rule 8.4, which provides in pertinent part as follows:

It is professional misconduct for a lawyer to:(a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another; (b) commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects; (c)engage in conduct involving dishonesty, fraud, deceit or misrepresentation . .. . (fn19)

The comments to Rule 8.4 add a gloss on the types of illegal conduct that would constitute professional misconduct: "Many kinds of illegal...