Panel addresses “pretexting,” and limits to investigative techniques

If the client you represent may not do it, you – their lawyer – may not do it. And if you as a lawyer can’t do it, you can’t make it right by hiring someone else to do it. These are key ethical considerations in investigative techniques, said Professor Thomas D. Morgan of the George Washington University Law School during a recent ABA-sponsored CLE on “Investigative Techniques: Legal, Ethical and Other Limits.” The program was sponsored by the ABA Section of Antitrust Law.

Morgan was joined on the program by Belinda A. Barnett, of the Justice Department's Antitrust Division; Mary Erin Mariani, corporate counsel for DuPont Legal; Christopher Wolf of Proskauer Rose; and moderator Ray Hartwell of Hunton & Williams.

There has been considerable coverage of pretexting in the news as of late, Hartwell began, where lawyers or other individuals try to obtain information through false pretenses. Other investigative techniques are based in deception as well, he noted.

Barnett explained that if a crime or misdeed is suspected, a “marker” – a placeholder to mark one’s place in line for leniency – is often obtained in order to allow time for an investigation. This (finite) amount of time allows for collection of documents, interviewing witnesses, and other elements of an investigation.

In responding to a question about how to proceed once a marker is obtained, Mariani stated that it is critical to be “very clear on what the goal of the investigation is” as this will help define and decide what investigative tools to utilize.

Investigative methods may include monitoring email and phone calls, searching an office and other space, and direct interviews. Wolf commented that a major consideration in whether a method is legal and ethical revolves around workplace privacy, and legitimate business interest v. the legitimate right to privacy. If employees are put on notice that their email may be monitored, for example, there should understandably be a lowered expectation of privacy.

However, one can reasonably expect privacy in the home, so a coworker who volunteers to help another get settled into a new home but is actually there to snoop around is undertaking investigative tactics using deceit and is violating Model Rule 8.4(c), said Morgan. Panelists also shared thoughts on reviewing the content of a home-based computer used for company business, as well as taping conversations. Jurisdictions vary as to what can and cannot be done legally, warned Barnett.

A portion of the materials used in connection with the CLE is available free of charge online [PDF]. The entire program, along with its printed materials, is available through the ABA WebStore.

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