Deception in Undercover Investigations: Conduct-Based vs. Status-Based Ethical Analysis
59 Pages Posted: 15 Apr 2008
Date Written: April 14, 2008
The ABA Model Rules of Professional Conduct proscribe conduct involving dishonesty, misrepresentation or deception. They also bar an attorney from doing indirectly, through a proxy, that which is ethically prohibited. Yet lawyers have supervised and directed investigators for decades in undercover operations aimed at uncovering racial discrimination, political corruption and organized crime. Some courts and commentators have argued that no deception should ever be permitted by attorneys, acting directly or indirectly. However, the recent trend has been to permit lawyers to supervise, and thereby indirectly participate in, undercover investigations in three substantive areas of the law: criminal, civil rights and intellectual property. Many jurisdictions permit undercover criminal investigations by government attorneys, but are silent about the rights of defense counsel to use deception.
I argue that the states should eschew status based distinctions in determining whether to permit undercover investigations. Whether particular conduct is ethical or not should not depend on whether it is undertaken by a prosecutor or defense attorney, or whether the lawyer seeks to enforce intellectual property rights as opposed to real property rights. The playing field should be leveled, and the ethics rules should focus on the actual conduct of the lawyer, not her status as a public prosecutor or civil rights investigator. Undercover investigations should be ethically permissible in any area of the law, and by any attorney, public or private sector, provided that the investigation is necessary, does not otherwise violate the law or ethics rules, and is indirectly supervised by the lawyer.
Keywords: legal ethics, undercover investigation, pretexting, deception, deceit, honesty, investigators
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