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Pretextual Investigative Techniques and the Rules of Professional Conduct

Judy Zeprun Kalman, General Counsel and AG Institute Director and Mariya Treisman, Special Assistant Attorney General, Massachusetts Attorney General's Office

This article considers whether assistant attorneys general (AAsG) may use pretextual techniques in their criminal and civil investigations without violating the Rules of Professional Conduct. To help AAsG understand the issues and analyze whether specific investigative techniques are permissible, the article describes how developments in two states led to recent rule changes to explicitly address the issue and provides a framework of analysis for AAsG in states where current rules do not address the issue.

Background

Courts have long recognized the value and, in some cases, necessity of using pretextual investigative techniques to gather evidence.[1] However, professional rules of conduct prohibit attorneys from engaging in misrepresentation, fraud, or deceit and therefore on their face seem to limit—or even prohibit—attorney involvement with pretextual investigative techniques. This tension has existed for some time and case law has grafted certain unwritten exceptions to the rules.[2] Recently, however, some courts that have considered the issue have been unwilling to read an investigation exception into the rules, which, for AAsG who are involved in planning, participating in, approving, or making use of their offices’ investigations, highlights the importance of carefully considering and vetting attorney involvement in any investigation that involves pretextual techniques.

When the Problem Arises: Examples from Two States that Recently Confronted the Issue and Implemented Rule Changes to Address It

The Colorado experience

Last year, the Colorado attorney general abandoned all of her pending undercover investigations when the Colorado Office of Attorney Regulation Counsel (ARC) concluded that Colorado Rules of Professional Conduct 5.3[3] and 8.4(c)[4] apply to government lawyers who supervise investigators engaged in lawful undercover activities (i.e., there is no “investigative exception”). The ARC’s determination was made in response to a complaint filed against a District Attorney’s Office that housed a child sex offender Internet investigations team. A convicted sex offender asserted that government lawyers are categorically forbidden from supervising or ratifying the conduct of undercover investigators. Applying the Colorado Supreme Court’s interpretation of relevant rules, the ARC agreed.[5] To avoid an investigation and possible sanctions, the District Attorney’s Office agreed to dissolve its investigation unit. Fearing that an ethics complaint could be filed against any government lawyer who works closely with an undercover agent, the Colorado attorney general opted to abandon all undercover investigations until the state’s highest court clarified whether attorneys were ethically allowed to oversee non-lawyer investigators who use false identities or other tactics to catch lawbreakers.

The Colorado attorney general filed a petition with the Colorado Supreme Court seeking an interpretation of the relevant rules that would recognize that supervision of investigations does not violate the rules of professional conduct. The court rejected the petition but simultaneously posted for public comment the following proposed amendment to Rule 8.4:

“It is professional misconduct for a lawyer to . . . (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation, except that a lawyer may advise, direct, or supervise others, including clients, law enforcement officers, or investigators, who participate in lawful investigative activities.”[6]

After holding a public hearing, the court adopted the proposed change in its entirety on Sept. 28, 2017. With the new rule now in effect, the Colorado Attorney General’s Office has resumed its undercover investigations. And, Colorado’s Standing Committee on the Rules of Professional Conduct has empaneled a subcommittee to consider drafting a comment offering some guidance on what constitutes “lawful investigative activities” under the amended Rule, and the Ethics Section of the Colorado Bar Association is contemplating drafting a formal ethics opinion on the same subject. At press time, no timetable had been set for either task.

The Oregon experience

In In re Gatti, the Oregon Supreme Court refused to recognize any sort of “investigatory exception” to the Oregon Rules of Professional Conduct.[7] The court recognized that “there are circumstances in which misrepresentations, often in the form of false statements of fact by those who investigate violations of the law, are useful means for uncovering unlawful and unfair practices.”[8] However, the Oregon rules provide that they “shall be binding upon all members of the bar” and the court’s case law “does not permit recognition of an exception for any lawyer to engage in dishonesty, fraud, deceit, misrepresentation, or false statements.”[9] Therefore, the court declined to adopt an exception and concluded it was “without authority to read into [the rule] an exception that the statute does not contain.”[10]

Following this decision, Oregon added an explicit exception to Rule 8.4:

Notwithstanding paragraphs (a)(1), (3) and (4) and Rule 3.3(a)(1), it shall not be professional misconduct for a lawyer to advise clients or others about or to supervise lawful covert activity in the investigation of violations of civil or criminal law or constitutional rights, provided the lawyer's conduct is otherwise in compliance with these Rules of Professional Conduct. "Covert activity," as used in this rule, means an effort to obtain information on unlawful activity through the use of misrepresentations or other subterfuge. "Covert activity" may be commenced by a lawyer or involve a lawyer as an advisor or supervisor only when the lawyer in good faith believes there is a reasonable possibility that unlawful activity has taken place, is taking place or will take place in the foreseeable future.[11]

With these cases in the background, other states have similarly amended or added comments to relevant rules of professional conduct to make it clear that government attorneys’ oversight of pretextual investigative techniques is not a violation of ethics rules.

When Rules Remain Silent: How Massachusetts Case Law Suggests a Framework for Analysis Where there is No “Investigative Exception” in the Relevant Rules

Like many states, Massachusetts has not adopted an explicit “investigative exception” to Rule 8.4. The Massachusetts courts have, however, lightly touched on the question whether such an exception may be implied. Therefore, using the Massachusetts rule and case law as an example, we will suggest a framework of analysis that AAsG may use when they are asked to develop, participate in, or authorize a pretextual investigation and the applicable version of Rule 8.4 does not contain an “investigative exception.”[12]

The Massachusetts Rules of Professional Conduct prohibit attorneys from “knowingly” making “a false statement of material fact or law to a third person,” and define misconduct as “any conduct involving dishonesty, fraud, deceit or misrepresentation.”[13] Because the rules prohibit all forms of false statements, deceit, and misrepresentations, “such conduct is . . . presumptively improper, unless a court has approved it (or would likely approve it).”[14] The question therefore becomes what type of conduct will not violate the rules, or would likely be found not to violate the rules, under existing case law?

Although Massachusetts case law is sparse, it provides guidance for analyzing this question.

It is . . . true that some degree of deception by attorneys, at least under

some circumstances, is permissible in order to gather evidence for use in

litigation. Such an investigative exception, however, is not set out in the

rules themselves, but has been created by courts as a judicial gloss on those

rules. Furthermore, and in any event, the SJC [Supreme Judicial Court] has made clear that any exceptions to the rules against deceit and misrepresentation by attorneys are

limited in scope.[15]

The Massachusetts Supreme Judicial Court (the state’s highest court) in In re Curry[16] and In re Crossen,[17]considered and recognized an “investigative exception” to the rule prohibiting attorneys from engaging in deception in related cases involving disciplinary proceedings against two private attorneys, although it concluded the exception did not apply to the problematic facts of the cases before it. Suspecting a certain judge was biased against their clients, the attorneys hired investigators to pose as corporate executives and interview the judge’s law clerk for a fictitious job in the hope of eliciting damaging statements about the judge’s decision-making processes.[18] When the interview did not produce the kind of evidence the attorneys were seeking, they told the law clerk about the ruse and threatened to release a recording of the interview and expose a false letter of support the clerk had submitted with his bar application.[19] The SJC concluded that the interview ruse and subsequent threat were not the type of investigative conduct previously approved by courts and clearly violated the ethical rules.[20] Both attorneys were disbarred.

In its analysis, the SJC distinguished between an investigation intended merely to “note or reproduce” the witness’s “unusual behavior” and a scheme designed to induce someone into doing something he or she would not otherwise do.

“Testing” involves deception of a particular kind: investigators pose

as members of the public interested in procuring housing or employment,

in order to determine whether they are being treated differently based on

their race or sex. Their aim is to reproduce an existing pattern of

illegal conduct. Some private investigators whose aim is to uncover other

civil wrongdoing, such as trademark infringement or breach of contract,

similarly disguise their identity and purpose without running afoul of

ethical rules.[21]

The court concluded that the tactics in Curry and Crossen fell well outside of what was acceptable because: (1) the attorneys were engaged in a complex scheme of deception, not a straightforward effort to gather evidence; and (2) the attorneys’ conduct was highly intrusive —it was intended to obtain information concerning the confidential relationship between a judge and his law clerk, which in turn tended to harm the administration of justice.[22]

Applying the Curry and Crossen framework, recently a federal district court in Leysock v. Forest Laboratories, Inc., considered whether a fictitious medical research survey fell within the “investigative exception.”[23] The court first considered whether the conduct involved false statements or deceit and found “[t]here is no dispute that the investigative scheme devised by [the] attorneys . . . involved an elaborate series of falsehoods, misrepresentations, and deceptive conduct. . . and therefore falls as a facial matter within the express prohibitions of Rules 4.1(a) and 8.4(c).”[24]

The court then turned to the question of whether the conduct of the attorneys “is subject to any investigative exception to those rules.”[25]

Although the rules on their face impose sweeping prohibitions, in fact they

have been interpreted to contain narrowly defined exceptions that permit

the gathering of evidence under certain circumstances. The first exception

. . . permits prosecutors and other government attorneys to conduct undercover criminal investigations, which typically require some level of deception or misrepresentation. . . . The second exception permits civil attorneys to use investigators in certain circumstances to obtain information that would

normally be available to any member of the public (such as a prospective renter or a consumer making a similar inquiry).[26]

The court concluded that the conduct of the attorneys in Leysock “far exceeded the boundaries of any investigative exception to the ethical rules.”[27]

First, the scheme went well beyond concealment of identity and purpose in order to obtain evidence. “These were not inquiries . . . seeking information that would be readily available to any member of the public who was seeking the products or services in question. . . . It was an elaborate scheme, involving a fake medical research study, intended to elicit information from practicing physicians about patients under their care.”[28]

Second, the scheme was highly intrusive as “it was intended to intrude into one of the most sensitive and private spheres of human conduct, the physician-patient relationship.”[29] Despite the importance of protecting the confidentiality of patient medical information, which “was surely known,” the attorneys “devised a fake ‘research study’ that was specifically intended to, and did, target confidential patient information” and “they then published that information.”[30] “Such a scheme is far closer to the conduct condemned in Curry and Crossen than the types of limited investigative misrepresentation that have been approved by the courts.”[31] As a result, the court struck the portions of the complaint that relied on evidence obtained in the medical research study ruse.

Applying the Curry/Crossen Framework

Based on Curry and Crossen, we can – as the Leysock court did -- infer that Massachusetts recognizes an investigative exception to rules of professional conduct that would otherwise prohibit attorney involvement in pretextual investigations. Further, we can apply the framework that was developed through these cases to determine whether attorney involvement in a particular investigative technique falls within the exception. Specifically, AAsG should consider the following before developing, participating in, or authorizing any pretextual investigative techniques.

1. Is this a criminal investigation? If it is a constitutional and procedurally proper criminal investigation, then it falls within a recognized investigation exception and government attorneys can oversee lawful pretextual investigative techniques without violating the rules of professional conduct.[32]

2. Is this a civil investigation? If yes, then consider the following factors to determine whether attorneys can oversee pretextual investigative techniques without violating the rules of professional conduct. Because no single factor is dispositive, attorneys considering civil investigations that involve pretextual techniques need to consider all factors and the use of any pretextual investigative technique should be reviewed and approved by a supervisor.

a. Is the investigation a straightforward effort to gather evidence?

i. Is the investigation designed to reproduce the subject’s usual behavior or is it designed to “trick” the subject into doing something he or she would not otherwise do?

Techniques that reproduce a subject’s usual behavior are more likely to be acceptable. For example, investigators posing as members of the public interested in procuring housing to determine whether they are being treated differently based on their race or sex are attempting to reproduce the way a landlord typically reviews a rental application.

At the other extreme, the attorneys in Curry and Crossen created an elaborate ruse designed to trick the law clerk into talking about a judge’s decision-making process, which he had never and would not otherwise have done.[33]

ii. Are the investigators gathering information that would be readily available to the public?

Techniques in which investigators pose as members of the public and ask for information anyone could obtain are more likely to be acceptable than schemes designed to obtain information that is generally not available to the public.[34]

b. How intrusive is the investigative technique?

The less intrusive the technique, the more likely it will be acceptable.

In Curry, Crossen, and Leysock, the investigative tactics were rejected in part because they intruded on protected relationships. The Curry/Crossen scheme was intended to obtain information concerning the confidential relationship between the judge and the law clerk.[35] Similarly, in Leysock, the scheme “was intended to intrude into one of the most sensitive and private spheres of human conduct, the physician-patient relationship.”[36]

c. Are the targets of the investigative techniques the suspected wrongdoers?

If the individuals contacted to gather information are the suspected wrongdoers, investigators must ensure that constitutional and procedural requirements are satisfied.

If the individuals contacted to gather information are not the suspected wrongdoers, investigators must be extremely cautious about the extent of the intrusion on the individuals (in addition to satisfying constitutional and procedural requirements).[37]

d . Is there any other way to collect the evidence of wrongdoing?

The courts have looked at the necessity of using a pretextual technique to collect required evidence Thus, a lawyer should determine and document the necessity of using a pretextual technique prior to employing it.[38]

e. Has the investigation been reviewed and approved by supervisors?

Given the rapidly developing but still sparse case law on attorney oversight of pretextual investigative techniques, each office should consider enacting a policy concerning whom should be consulted when such an investigation is being considered. For instance, in Massachusetts, a supervisor is consulted and, if that person has questions, a request for advice can go to the General Counsel’s Office.

Conclusion

Relevant case law is limited and, as the examples from Colorado and Oregon illustrate, the issue of attorney involvement in pretextual investigations continues to be a rapidly developing area of the law. As a result, AAsG should first check the language of their respective states’ rules to determine whether there is an explicit investigative exception to attorney involvement in pretextual investigations. If there is no explicit investigative exception in the respective state’s rules, AAsG may apply the framework above to carefully consider the use of any pretextual investigative technique and encourage their offices to establish protocols when a pretextual investigation is contemplated.[39]


[1]See Haven Realty Corp. v. Coleman, 455 U.S. 363 (1982) (black “tester” had standing to sue under the Fair Housing Act where she was informed that apartments were not available while white “testers” were informed that apartments were available); Wharton v. Knefel, 562 F.2d 550 (8th Cir. 1977) (use of housing testers is commonplace and their evidence in housing cases has been uniformly accepted); Hamilton v. Miller, 477 F.2d 908, 909 n. 1 (10th Cir. 1973) (“it would be difficult indeed to prove discrimination in housing without [the tester’s] means of gathering evidence”); Leysock v. Forest Laboratories, Inc., 2017 WL 1591833 at *6 (D. Mass April 28, 2017) (Saylor IV, J.), appeal dismissed, 2017 WL 5712654 (1st Cir. Aug. 31, 2017) (criminal investigations typically require some level of deception or misrepresentation);Gidatex, S.r.L. v. Campaniello Imports, Ltd., 82 F.Supp.2d 119, 124 (S.D.N.Y. 1999) (“enforcement of the trademark laws to prevent consumer confusion is an important policy objective, and undercover investigators provide an effective enforcement mechanism for detecting and proving anti-competitive activity which might otherwise escape discovery or proof”).

[2]See, e.g., Apple Corps v. International Collectors Soc’y, 15 F. Supp. 2d 456, 475 (D. N.J. 1998) (“The prevailing understanding in the legal profession is that a public or private lawyer’s use of an undercover investigator to detect ongoing violations of the law is not ethically proscribed, especially where it would be difficult to discover the violations by other means.”).

[3] Colorado Rule of Professional Conduct 5.3 requires lawyers with supervisory authority over nonlawyers to “make reasonable efforts to ensure that the person’s conduct is compatible with the professional obligations of the lawyer” and holds the lawyer responsible for conduct “that would be a violation of the Rules of Professional Conduct if engaged in by a lawyer.”

[4] At the time, Colorado Rule of Professional Conduct 8.4(c) provided that it was professional misconduct for a lawyer to “engage in conduct involving dishonesty, fraud, deceit or misrepresentation.”

[5]See In re: Pautler, 47 P.3d 1175 (Co. 2002) (Rule 8.4 prohibits prosecutors from using deception); People v. Reichman, 819 P.2d 1035 (Co. 1991) (Rule 8.4 applies a fortiori to prosecutors).

[6] Colo. R. Prof. C. 8.4 (proposed changes in italics).

[7] 330 Or. 517, 529-33 (2000).

[8]Id. at 532.

[9]Id. (emphasis in original).

[10]Id. at 533.

[11] Or. R. Prof. C. 8.4(b).

[12] These states include Alabama, Alaska, Florida, Iowa, Michigan, Missouri, North Dakota, Ohio, Oregon, South Carolina, Tennessee, Virginia, Wisconsin, and Wyoming, as well as the District of Columbia.

[13] Mass. R. Prof. C. 8.4 which provides:

It is professional misconduct for a lawyer to: (a) violate or attempt to violate

the Rules of Professional Conduct, knowingly assist or induce another to do

so, or through the acts of another; . . . (c) engage in conduct involving dishonesty,

fraud, deceit or misrepresentation; (d) engage in conduct that is prejudicial to the administration of justice; . . . or (h) engage in any other conduct that adversely

reflects on his or her fitness to practice law.

[14] Leysock v. Forest Laboratories, Inc., No. 12-11354-FDS, 2017 WL 1591833 at *8 (D. Mass. Apr. 28, 2017). The rules apply to attorneys who use pretextual techniques themselves as well as to attorneys who supervise investigators or others who do so. See Mass. R. Prof. C. 5.3 (requiring lawyers with supervisory authority over nonlawyers to “make reasonable efforts to ensure that the person’s conduct is compatible with the professional obligations of the lawyer” and holding the lawyer responsible for conduct “that would be a violation of the Rules of Professional Conduct if engaged in by a lawyer”).

[15] Id. at *7.

[16] 450 Mass. 503 (2008).

[17] 450 Mass. 533 (2008).

[18] Curry, 450 Mass. at 510-17; Crossen, 450 Mass.at 540-41

[19] Curry, 450 Mass. at 513; Crossen, 450 Mass. at 548-49.

[20] Curry, 450 Mass. at 521-25; Crossen, 450 Mass. at 562, 568

[21] Curry, 450 Mass. at 523 (emphasis added).

[22] Curry, 450 Mass. at 526 (expressing concern about “efforts to pierce the confidential communications of former law clerk and a judge in a pending matter”); Crossen, 450 Mass. at 559-60 & n.38 (same).

[23] Leysock, 2017 WL 1591833 at *6-12.

[24] Id. at *8.

[25] Id.

[26] Id. at *6.

[27] Id. at *8.

[28] Id. at *9.

[29] Id. at *10.

[30] Id. at *10-11 (emphasis in original).

[31] Id. at *11.

[32] See id. at *6 (“The first exception . . . permits prosecutors and other government attorneys to conduct undercover criminal investigations, which typically require some level of deception or misrepresentation.”); Curry, 450 Mass. at 524 (“prosecutors are subject to a variety of powerful procedural and constitutional constraints on misleading and deceptive conduct to which private attorneys are not subject”).

[33] See, e.g., Curry, 450 Mass. at 524 (referring to conduct as an “elaborate fraudulent scheme,” and noting that “[t]his coercive and deceptive process was designed to trick the law clerk, not to note or reproduce his usual behavior”).

[34] See Leysock, 2017 WL 1591833 at *9 (finding the investigation fell outside of the exception in part because the information that was gathered was not readily available to the public).

[35] Curry, 450 Mass. at 526 (expressing concern about the “efforts to pierce the confidential communications of former law clerk and a judge in a pending matter”); Crossen, 450 Mass. at 559-60 & n.38 (same).

[36] Leysock, 2017 WL 1591833 at *10.

[37] See, e.g., id. at *11 (noting that the targets of the deceptive conduct were not the suspected wrongdoers but were “wholly innocent physicians who are neither accused nor suspected of participating in the alleged scheme”).

[38] See id. at *10 (“To the extent that ethical rules tolerate any level of misrepresentation or deceit as to identity and purpose, it is justified on the ground that such conduct is sometimes necessary in order to collect evidence of wrongdoing.”).

[39] A case in Pennsylvania will be worth watching. Bar authorities have agreed to hear an ethics complaint against a district attorney who created a fake Facebook profile and told subordinates to use it to “friend” defendants and witnesses. Samson Habte, Catfishing Brings Trouble for Pa. Prosecutor and N.Y. Lawyer, BNA (Sept. 19, 2017), https://www.bna.com/catfishing-brings-trouble-n57982088205/. The hearing was originally scheduled for November but at press time had been postponed.

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