Going undercover: Issues in pretext investigations

Can lawyers use deception to detect and stop wrongdoing? That was the primary question discussed during the program, “Can Attorneys Go Undercover: Ethical Issues in Intellectual Property Pretext Investigations,” at the ABA Midyear Meeting in Los Angeles.

Lawyers should proceed carefully with investigations involving misrepresentation, advised panelist James Fischer, professor, Southwestern Law School, Los Angeles. He cited three rules from the Model Rules of Professional Conduct, Rule 4.1, Rule 8.4 and Rule 4.2 that are particularly relevant to the issue.

“Rule 4.2 is the one that most often causes grief for lawyers conducting investigations,” said Fischer.  Rule 4.2 suggests that if the subject of a potential sting operation is represented by counsel, the lawyer interested in the investigation must contact the party’s lawyers before conducting any operation.

Still, several investigations have received judicial approval, leaving room for interpretation.  “You will see two exceptions to the rules involving misrepresentation—investigations of civil rights and intellectual property rights violations,” said panelist Christopher McGeehan of Greer Burns and Crain.

Given the ambiguity around the issue, lawyers should consider:

• What is the purpose of the deceit? When courts have admitted evidence obtained through misrepresentation, they have deemed the deception as necessary to uncover the wrongful act or considered the deceit a lesser wrong than what it exposed.
• Is the deceit legal? The deception cannot violate the law, which can vary from state to state
• Will the conduct subject the client to liability?
• Are there public relations consequences of the investigation?
• What forms of deception will be used? “As the type and nature of deception changes, the likelihood that it will attract judicial attention, concern and sanction increases,” said Fischer.

In addition to Fischer and McGeehan, the panel included Herbert P. Williams of Foley and Lardner LLP. The Young Lawyers Division, Section of Intellectual Property Law, Section of Science and Technology Law and the ABA Center for Professional Responsibility sponsored the program.

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