June 2008
Not Telling the Whole Truth: How Much Leeway Do Lawyers or Investigators Working with Them Have To Feign Identity?
by Kevin Bank
To ascertain whether a client has a meritorious case, or to advocate effectively for a client, a lawyer may need to assume the role of detective. She has to pursue information known only to neutral witnesses, custodians of financial records, or persons associated with the opposing party, and this information may be difficult to obtain. The civil and criminal rules provide ways of obtaining such information through discovery, but discovery can be expensive and time-consuming, and depending on the circumstances, may be permitted only after a lawsuit has been filed. A lawyer, whether directly or through an investigator, might prefer to find out facts less overtly, particularly in the pre-complaint stage. In pursuing such information, the lawyer or investigator may suppose it advantageous to hide or misrepresent his or her true identity and/or the purpose of the inquiry.1 The use of such tactics is referred to as "pretexting" or "dissemblance." To what extent is pretexting permissible under Washington's ethical rules?
A recent Washington statute clearly prohibits one form of pretexting. RCW 9.26A.140, enacted in 2006, makes the knowing receipt of a person's telephone records without the person's permission a gross misdemeanor.2 Furthermore, it is a class C felony to intentionally sell, knowingly purchase, or fraudulently obtain a person's telephone records without the person's permission. Thus, a lawyer who uses fraud or knowingly purchases someone else's telephone records without permission, or who receives records from another (such as an investigator) that the lawyer knows to have been received without permission of the owner of the records, could be subject to criminal prosecution, and/or civil liability for actual or liquidated damages.3 Furthermore, the lawyer would likely face disciplinary action for violating several Washington Rules of Professional Conduct (RPC), including RPC 8.4(a) (violating RPC through actions of another); 8.4(b) (committing a criminal act); RPC 8.4(c) (engaging in dishonesty, fraud, deceit, or misrepresentation); RPC 4.4 (obtaining evidence in a manner that violates the legal rights of a third person); and/or 5.3 (requiring that lawyers who supervise non-lawyer assistants assure that the non-lawyers' conduct is compatible with the lawyer's professional obligations).
Although disciplinary cases involving pretexting have been rare in Washington, a recent case resolved by stipulation to reprimand illustrates how assuming a false identity to obtain information can be perilous for lawyers.4 The lawyer disciplined in that case (respondent), who represented a plaintiff in a personal injury matter, called the home of the soon-to-be defendants. He first spoke to the driver of the vehicle involved in the accident, Kathryn, who was driving her parents' car. Respondent told Kathryn he was an agent from State Farm, her parents' insurer, and that he had some documents he wanted to deliver the next day. He asked when a good time would be to have the documents delivered. (He failed to mention that the documents consisted of his client's summons and complaint.) Kathryn called her mother to the phone. Respondent once again identified himself as a State Farm agent and asked whether anyone would be home the next day to receive some documents. When questioned further by the mother as to who he was, respondent said he was working with a process server and misrepresented that he was not a lawyer. Respondent stipulated to violating RPC 8.4(c) and RPC 4.1(a) (making a false statement of material fact or law to a third person).
Clearly, as the above two examples illustrate, certain forms of pretexting may not only violate the RPCs but also could lead to a criminal indictment in Washington. But are any forms of pretexting permitted? Washington has not specifically addressed the issue, but other states have weighed in.
Oregon, Alabama, and Florida have amended their versions of RPC 8.4(c) to permit pretexting in certain circumstances. While the Oregon Rules barring criminal, deceitful, dishonest, and fraudulent conduct by lawyers are identical to Washington's rules,5 Oregon includes a "safe harbor" provision stating that:
[I]t 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 . . . "Covert Activity" . . . 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.6
In an ethics opinion interpreting various scenarios under the safe-harbor provision, the Oregon Bar clarified that a lawyer's involvement in covert activity is not protected by the rule if there are no "violations of civil law, criminal law or constitutional rights" to investigate, and emphasized that even then, the lawyer has to believe in good faith that there is a reasonable possibility that the violation has taken place, is taking place, or will take place in the foreseeable future.7 The opinion advises that the drafter's use of the term "reasonable possibility" appears to have been a "deliberate attempt to state a bare-rationality standard" for the lawyer's belief.8 Finally, the opinion holds that while the exception in Oregon RPC 8.4(b) makes it appropriate for a lawyer to "commence" or "conceive" of a covert investigation, the exception does not contemplate that the lawyer will directly "speak the deceptive words, take the deceptive action, or undertake an undercover identity in the course of that activity."9 Thus, the lawyer who misrepresented himself to be an insurance agent would not be protected by Oregon's safe harbor provision.
Unlike Oregon, Alabama and Florida limit their "safe harbors" to government lawyers involved in law enforcement. In Alabama, a prosecutor "may cause non-lawyers employed by or retained by or associated with the prosecutor" to engage in any action that is not prohibited by law. However, if the action is not prohibited by law, but would nevertheless violate the RPC if done by a lawyer, the lawyer may have only "limited participation in the action."10 Florida's rule permits a lawyer for a criminal law enforcement agency or regulatory agency to advise or supervise others in an undercover investigation, unless prohibited by law.11
A recent New York ethics opinion specifically addresses the use of misrepresentation in an even more controversial arena, i.e., by non-government lawyers. It advises that misrepresentation as to identity and purpose may be permissible by investigators used by such lawyers, but only in very limited circumstances.12 The opinion does not address the extent to which a lawyer can engage in dissemblance directly.
Although New York has not adopted the Model Rules of Professional Conduct (which form a basis for Washington's RPC), its Code of Professional Responsibility includes prohibitions similar to the Washington RPC regarding a lawyer's ethical duties to desist from engaging in deceit, fraud, or misrepresentation.13 The New York opinion states that any kind of misrepresentations or uncorrected false impressions used by an investigator whose work is overseen or used by a lawyer that rises to the level of perjury or fraud is clearly barred by ethical rules, as are deceptive evidence-gathering techniques that violate the rights of third parties (such as obtaining confidential records without the owner's permission). However, after analyzing case law, ethics opinions, and some scholarly reviews, the opinion advises that lawyers may ethically supervise non-attorney investigators employing pretexting in circumstances where: (i) the investigation is focused on a violation of civil rights (such as "testers" in job discrimination cases) or intellectual property rights (such as investigators posing as consumers interested in purchasing items that allegedly infringe on a competitor's trademark) and the lawyer believes in good faith that a violation is taking place or will take place imminently; (ii) the evidence sought is not reasonably available through other lawful means; (iii) both the lawyer's conduct and the investigator's conduct do not otherwise violate ethical rules (such as contact with a represented party); and (iv) the dissemblance does not unlawfully or unethically violate the rights of third parties. Finally, the investigator must be instructed not to elicit information protected by the attorney-client privilege.
Pretexting will undoubtedly continue to be a hotly debated issue. For Washington lawyers, it is important to remember that whether and when pretexting may be permissible remains a grey area, and that the Washington RPCs have not created any "safe harbors" that would permit pretexting by either lawyers or investigators supervised by lawyers.
Kevin Bank is a managing disciplinary counsel at the WSBA. He has worked at the WSBA since 1999, and prior to that was a consumer-protection attorney with the Federal Trade Commission. This article represents his views, and not those of the WSBA.
NOTES
1. The well-publicized Hewlett-Packard controversy arose from "pretexting" by investigators hired by the company's Board. The investigators used false pretenses to obtain telephone records of persons suspected of leaking internal discussions to the press. Hewlett-Packard's general counsel was found to have had knowledge of at least some of the investigator's activities, which led to her resignation from the company. See Joan C. Rogers, "Scandals Involving Investigators Ensnare Lawyers," 22 ABA/BNA Manual on Professional Conduct, 507-08 (October 18, 2006).
2. RCW 9.26A.140(2)(a) provides a safe harbor for actions by a government agency or its employees to obtain telephone records in the performance of official duties.
3. RCW 9.26A.140(4).
4. In re Patrick J. Leahy, Public No. 07#00036 (September 24, 2007).
5. Compare Oregon RPC 8.4(a)(2) and (3) with Washington RPC 8.4(b) and (c).
6. Oregon RPC 8.4(b).
7. Oregon Formal Opinion No. 2005-173, p. 482, 484 (August 2005).
8. Id. at 485.
9. Id. at 483.
10. Alabama Rule 3.8(2)(a) and (b).
11. Florida Rule 4-8.4(c).
12. New York County Lawyers' Ass'n Comm. on Professional Ethics, Op. 737 (May 23, 2007). See also Oregon Formal Op. No. 2005-173 (August 2005) (permitting lawyers to supervise lawful covert activity in the investigation of civil, criminal, or constitutional rights).
13. The New York Rules at issue prohibit a lawyer from engaging in dishonesty, deceit, or misrepresentation (New York DR 102(a)(4)); engaging in illegal conduct that adversely reflects on the lawyer's honesty, trustworthiness, or fitness as a lawyer (NY DR 102(a)(4)); knowingly making a false statement of law or fact (NY DR 7-102(a)(5)); circumventing a disciplinary rule through the acts of another (NY DR 1-102(a)(2)); and hold a lawyer responsible for the violation of disciplinary rules by non-lawyers when the lawyer orders, directs, or ratifies the misconduct of non-lawyers (NY DR 1-104(d)).
