To Catch a Criminal, to Cleanse a Profession: Exposing Deceptive Practices by Attorneys to the Sunlight of Public Debate and Creating an Express Investigation Deception Exception to the Aba Model Rules of Professional Conduct

• Publication year: 2021

89 Nebraska L. Rev.219. To Catch a Criminal, to Cleanse a Profession: Exposing Deceptive Practices by Attorneys to the Sunlight of Public Debate and Creating an Express Investigation Deception Exception to the ABA Model Rules of Professional Conduct

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Tory L. Lucas(fn*)

To Catch a Criminal, to Cleanse a Profession: Exposing Deceptive Practices by Attorneys to the Sunlight of Public Debate and Creating an Express Investigation Deception Exception to the ABA Model Rules of Professional Conduct

TABLE OF CONTENTS

I. Introduction.......................................... 220

II. An Attorney Did What? Using Attorney Deception to Catch a Criminal..................................... 221
A.Fact Pattern of the Recent Nebraska Case of Attorney Deception ................................ 222
B.Are Attorneys Ethically Permitted to Engage in Deception?........................................ 226

III. Introduction to the Analytical Framework: A Stroll through the Model Rules.............................. 227

IV.Analysis of the Scattered History of Confronting the Ethics of Attorney Deception.......................... 234
A.You Think I'm Your Attorney: Deception within the Attorney-Client Relationship...................... 235
B.You Can't Trust Me: Deception when Acting as an Attorney for a Client .............................. 244

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C. I Didn't Deceive, I Just Told Someone Else to Deceive: Derivative Ethics Claims for Attorneys Directing Other Persons to Engage in Deception ..................................256
D. I'm Not Your Attorney, I'm a Secret Informant: Deception by Attorneys Acting in a Non-Representational, Non-Attorney Capacity.......... 281

V. Some States Enter the Debate: Express Deception Exceptions............................................ 283

VI. Drafting an Explicit Investigation Deception Exception ............................................. 286

VII. Conclusion............................................ 289

I. INTRODUCTION

"In undertaking the privilege to practice law, I do solemnly swear that I will lie, deceive, misrepresent, and engage in fraud in order to serve my client's and my own personal interests."

Although I doubt that anyone reading this Article has sworn such an oath (or openly advocates the use of such an oath for newly sworn attorneys), the issue of whether attorneys may ethically engage in deception has not enjoyed the thorough, open discussion necessary for a consistently applied standard. This must change. Nearly a century ago, Louis D. Brandeis wrote that publicity can remedy social diseases, because sunlight is the best disinfectant and can effectively police human behavior.(fn1) A half-century before that, Lord Acton stated, "Every thing secret degenerates, even the administration of justice."(fn2) The legal profession, as guardian of the administration of justice, needs some disinfecting sunlight to pour over the attorney deception issue, one that for too long has vexed and perplexed attorneys and judges. As a profession, attorneys need a full and open debate to determine whether, and to what extent, it is ethical for attorneys to employ deception.

This Article concludes that the American Bar Association (ABA) Model Rules of Professional Conduct (Model Rules) currently do not contain a deception exception, and that without such an exception, attorneys employing deceptive practices are subject to charges of unethical misconduct. There are circumstances, however, that reveal how society can benefit through the use of deception. For example, longstanding policies of federal and state governments employ deception in undercover criminal investigations, various civil-rights groups employ deception to root out and eradicate discrimination, and holders of

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intellectual property rights employ deception to ensure that others do not unlawfully infringe upon those rights. Although arguably a certain amount of deception is required to support these investigative efforts (because those suspected of unlawful activity are unlikely to continue their lawlessness if an investigator reveals his true purpose), there is no sound public policy that requires attorneys to personally engage in the deception. That does not mean, however, that, in the absence of positive law to the contrary, non-attorneys should be prohibited by attorney ethics rules from employing deception simply because an attorney directs the deception. This Article promotes a well-defined investigation exception to the prohibition of attorney deception, or what I term "the investigative deception exception."

Part II of this Article describes a recent news-making case involving attorney deception to set the stage for a discussion of whether attorneys may ethically engage in deception. Part III creates an analytical framework using the Model Rules to guide the discussion of disciplinary cases involving attorney deception. In Part IV this Article analyzes key disciplinary cases and ethics opinions implicating attorney deception. This Article then illustrates in Part V how some states have enacted express deception exceptions to their ethics rules. Finally, in Part VI this Article proposes an express investigation deception exception to the Model Rules. As the legal profession determines the scope of the deception exception, however, attorneys must stridently ensure that any unintended byproducts do not include the creation of distrust in the legal profession or the system of justice. Regardless of whether you ultimately agree with this Article's proposed investigation deception exception, attorneys owe each other, the legal profession, the administration of justice, and the citizens that rely on our efforts, a full and open debate on the ethics of attorney deception. Let's get to it.

II. AN ATTORNEY DID WHAT? USING ATTORNEY DECEPTION TO CATCH A CRIMINAL

Attorney deception can take-and has taken-many forms, including lying to non-clients, clients, and even courts. For obvious reasons, attorneys who engage in deception seek to be cloaked in anonymity to reap the benefits of their deception; being fair and forthright may not yield the same benefits as being cloaked in anonymity. As such, attorneys who engage in deception-or instruct others to engage in deception-often claim that deception is required to meet the needs of justice. This yields a couple of straight-forward questions. Are there circumstances in which attorneys may ethically engage in deception? If those circumstances exist, and if there should be a deception exception, what should be its scope? To fairly answer these questions, we must ask whether the legal profession, under the policing and cleansing

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glare of sunlight through open debate, can rationalize that the ends sought to be achieved justify the means of attorney deception.

Although this Article will discuss numerous situations in which attorneys have used deception, it might be prudent to begin by describing the publicly available facts of an interesting-yet controversial- case in which a Nebraska attorney recently made headlines by participating in an undercover investigation to catch a criminal. Assisting both federal and state authorities, apparently under the direction and supervision of government attorneys, a criminal-defense attorney chose to wear a wire to record jailhouse conversations with a suspect.(fn3) From the public record, it is difficult to determine whether the attorney was acting as though he was the suspect's attorney, was being paid by the suspect to represent a co-defendant, or simply was acting as a criminal co-conspirator in a non-representational, non-attorney capacity. Regardless of the actual role assumed by the attorney, it is undisputed that the attorney intentionally employed deception to help authorities gather evidence against the suspect. The attorney undoubtedly hid his true identity and purpose as an undercover government informant from the suspect-otherwise the suspect may not have provided any damaging information.(fn4) Given the facts outlined below, the legal profession must ask whether attorneys have the unilateral right to decide to engage in this type of deception without running afoul of ethical standards. Society is listening for the answer.

A. Fact Pattern of the Recent Nebraska Case of Attorney Deception

By most publicly available accounts, Shannon williams seems to be regarded as a dangerous man and a criminal. williams has been charged with committing serious crimes, such as murdering a rival gang member (of which he was acquitted), distributing crack cocaine, and possessing marijuana.(fn5) More recently, federal authorities began to suspect that williams was the mastermind and architect of a multimillion-dollar marijuana ring that trafficked more than a ton of marijuana between Phoenix, Arizona, and Omaha, Nebraska.(fn6)

The investigation into williams's marijuana trafficking activities began with an October 5, 2008, traffic stop in Illinois of a speeding

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truck carrying 329 pounds of marijuana.(fn7) After the stop, the driver of the truck, Steve Kisseberth, and passenger, Richard Conway, agreed to cooperate with authorities.(fn8) They allowed the authorities to follow the truck to Omaha.(fn9) Later that day in Omaha, authorities arrested a woman who appeared to be acting as a lookout for the truck carrying the marijuana.(fn10) That woman was 23-year-old Nyasha Muchegwa, an immigrant from...