Lawyers for civil rights plaintiffs have leeway to use investigators who employ dissemblance, according to a recent New York County Lawyers Association Committee on Professional Ethics opinion, NYCLA Formal Opinion No. 737 (5/23/07) (“NYCLA Opinion”), www.nycla.org/siteFiles/Publications/Publications519_0.pdf. Under most circumstances, a lawyer may not engage in dishonesty, fraud, deceit, or misrepresentation. A lawyer is not only responsible for her own conduct, but for the conduct of lawyers and non-lawyers she supervises, and especially for conduct she directs or orders, has knowledge of, or ratifies. The NYCLA Opinion warns that a lawyer must keep these prohibitions in mind when hiring an investigator who intends to use deception to gather evidence.

The NYCLA opinion specifically addresses an investigator’s misstatements as to “identity and purpose” that are typically made by “testers” in discrimination investigations. This can be an important issue in the employment context, especially to those who bring hiring bias cases, because the use of testers is often the only way to root out such discrimination. See Michael Fix and Margery Austin Turner, A National

Report Card on Discrimination in America: The Role of Testing, www.urban.org/UploadedPDF/report_card.pdf.

Law enforcement agencies, including the United States Department of Justice, www.usdoj.gov/crt/housing/housing_testing.htm; the Equal Employment Opportunity Commission, s ee Marcia Coyle, EEOC Plans to Try Out Workplace Bias, The National Law Journal, Jan. 19, 1998, at A10; the Massachusetts Commission Against Discrimination (MCAD), see Kathryn Lodato, Krista Joy Martinelli, Larissa Ng, Richard Todd Schwartz and Lara Vinnardsent, Investigatory Testing as a Tool for Enforcing Civil Rights Statutes, http://w3.uchastings.edu/plri/spring98/testing.html; the Indiana Civil Rights Commission, www.in.gov/icrc/opportunities/tester.html; and the Iowa Civil Rights Commission, www.iowa.gov/government/crc/docs/annual94testing.html, have used testers in discrimination investigations. The United States Supreme Court upheld the standing of testers in Havens Realty Corp. v. Coleman, 455 U.S. 363, 373; 71 L. Ed., 2d 214, 225 (1982).

According to the NYCLA Opinion, only one state, Oregon, has a rule-based exception for the use of dissemblance in civil rights investigations. See Rule 8.4 of the Oregon Rules of Professional Conduct. As for formal ethics opinions, none is directly on point. ABA Opinion 01-422 addresses surreptitious recording but leaves “for another day the separate question of when investigative practices involving misrepresentations of identity and purpose nonetheless may be ethical.” Alabama, Oregon, Washington, D.C., and Utah have issued opinions that bear on the issue but do not meet it head on.

The NYCLA Opinion also surveyed judicial opinions on the issue. A few federal courts have weighed in, in the context of evidentiary rulings. The Seventh Circuit sanctioned the use of testers in Richardson v. Howard, 712 F.2d 319, 321-22 (7th Cir. 1983), holding that, “deception was a relatively small price to pay to defeat racial discrimination.” See also, Hamilton v. Miller, 477 F.2d 908, 909, n.1 (10th Cir. 1973). Other federal courts have admitted evidence gathered by dissembling investigators in other contexts. See, e.g., Cartier v Symbolix, Inc., 2006 U.S. Dist. LEXIS 71446 (S.D.N.Y. 2006), Gidatex v. Campaniello Imports, Ltd., 82 F. Supp.2d 119 (S.D.N.Y. 1999), Apple Corps Ltd. v. International Collectors Society, 15 F. Supp. 2d 456 (D.N.J. 1998). On the other hand, the Eighth Circuit, in Midwest Motor Sports v. Arctic Cat Sales Inc., 347 F.3d 693 (8th Cir. 2003), and the Supreme Court of Wisconsin, in In re Wood, 190 Wis. 2d 502; 526 N.W.2d 513 (Wisc. 2005), excluded such evidence, but not solely because of the investigators’ dissemblance.

Noting that there is no “nationwide consensus” on the issue, the NYCLA Opinion concluded that attorneys may “ethically supervise non-attorney investigators employing a limited amount of dissemblance in some strictly limited circumstances where . . .

(i) either (a) the investigation is of a violation of civil rights or intellectual property rights and the lawyer believes in good faith that such violation is taking place or will take place imminently or (b) the dissemblance is expressly authorized by law; and

(ii) the evidence sought is not reasonably available through other lawful means; and

(iii) the lawyer’s conduct and the investigators’ conduct that the lawyer is supervising do not otherwise violate the Code . . . or applicable law; and

(iv) the dissemblance does not unlawfully or unethically violate the rights of third parties.

Moreover, the investigator must be instructed not to elicit information protected by the attorney-client privilege.” NYCLA Opinion at 5-6.

Dissembling in investigations is not the only context in which the ethics rules allow civil rights lawyers some extra wiggle room. A New York trial court rejected an ethics challenge to the use of clandestine taping in a race discrimination employment case:

Here, too, we have activity that might otherwise evade discovery or proof and a circumstance which has policy interests as compelling as those we find in housing discrimination matters. The interests at stake here transcend the immediate concerns of the parties and attorneys involved in this racial bias action. The public at large has an interest in insuring that all of its members are treated with that modicum of respect and dignity that is the entitlement of every employee regardless of race, creed or national origin. Weighed against this ethical imperative, the attorney's conduct, even had it involved more hands-on participation than it actually did, should not be subject to condemnation under the disciplinary rules and does not warrant the extreme sanction of suppression or disqualification.

Mena v. Key Food Stores Coop., Inc., 195 Misc. 2d 402, 407 (N.Y. Misc. 2003). Likewise, courts have relaxed the solicitation rules when civil rights are at stake, see NAACP v. Button, 371 U.S. 415, 434 (1963) (“There thus inheres in the [anti-solicitation] statute the gravest danger of smothering all discussion looking to the eventual institution of litigation on behalf of the rights of members of an unpopular minority”), and in the class action context, see New York Disciplinary Rule 2-104(f), 22 NYCRR § 1200.9 (“If success in asserting rights or defenses of a client in litigation in the nature of a class action is dependent upon the joinder of others, a lawyer may accept employment from those contacted for the purpose of obtaining their joinder, provided such acceptance does not violate any statute or court rule in the judicial department in which the lawyer practices.”)

Civil rights lawyers by no means have a free pass when it comes to ethics, but the ethics opinions, judicial decisions, and disciplinary rules certainly recognize the difficulty they face in exposing and proving discrimination, and the importance of their work.

Ethics Corner is a regular contribution by the Section’s Ethics and Professional Responsibility Committee.

Justin M. Swartz is a partner at Outten & Golden LLP, and Co-Chair of its Class Action Practice Group. He has represented employees in class action discrimination and wage/hour cases, as well as individual discrimination cases and other employment matters, since 1998. He is the Plaintiff Co-Chair of the ABA LEL Ethics and Professional Responsibility Committee, and an active member of the Equal Employment Opportunity Committee. He serves on the Committee on Civil Rights of the New York City Bar Association and the Executive Board of the National Employment Lawyers Association New York Chapter, and is Co-Chair of the NELA Fair Labor Standards Act Committee.

Cara E. Greene is an associate at Outten & Golden LLP , where she represents employees in litigation and negotiation in all areas of employment law, including disability, pregnancy, and family responsibilities discrimination; class actions; and executive and professional contracts and compensation. She is a member of the ABA LEL Ethics and Professional Responsibility Committee and is Plaintiff’s Co-Chair of the Ethics sub-committee of the Employee Rights and Responsibilities Committee.