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. More recently, some courts and commentators have expanded the permissible scope of attorney involvement in undercover investigations to include intellectual property rights.
I analyze the use of deception in investigations along two axes: Status-based and conduct-based. The status-based axis considers the type of case and the status of the lawyer supervising the investigation. (E.g., a government lawyer supervising a criminal investigation.) The conduct-based axis considers the actual conduct of the attorney: Was the deception necessary, was it direct or indirect, did it cause unnecessary harm? 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. Some of the cases have actually shown a disparity between the conduct permitted by prosecutors, as opposed to defense lawyers, or even between federal and state prosecutors. Accordingly, 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.