Contracting out the dirty work

Via Freivogel on Conflicts: The New York County Lawyers’ Association has published an ethics opinion on the propriety of hiring investigators to communicate with counterparties in ways which would be unethical for the lawyer hiring them. Prima facie improper with only very limited exceptions, they say. Unless what is contemplated is pre-litigation, it seems to me that an unaddressed question is the operation of what the Americans call “the rule against communicating with a represented opponent” (rule 4.2 in the quote below). On that topic, Freivogel cites this case:

Use of lying investigator with hidden recording device to interview adversary’s employees causes violation of Rules 4.2 and 8.4(c) and exclusion of evidence. Midwest Motor Sports d/b/a Elliott Power Sports, Inc. v. Arctic Cat Sales, Inc., 347 F.3d 693 (8th Cir. 2003).

In Victoria, many private investigators are ex-policemen and seem mysteriously to be able to find out information which other members of the public are not able to, for example the registered proprietor of a vehicle with a particular registration number. That seems to be either straight out corruption or straight hacking, and a lawyer who routinely used investigators to obtain such information which should not be able to obtained, would seem to me susceptible to ethics investigation.

Regardless of the ethics of the issue, the lawyer who uses the dodgy investigator is putting his or her client at a substantial unfair advantage over his straight opponent’s client, which is of course why professional ethics should be of professional interest to professionals.

The NY opinion deals with lawyer conduct through investigative agents which is not so egregious. That is, where a lawyer hires an investigator to conduct a sting operation using an assumed identity. The opinion is that such conduct is prima facie unethical, with some narrow exceptions. The executive summary is reproduced below. Before you read it, though, know this: “dissembling” means ‘To give a false impression about something); to cover up (something) by deception (to dissemble the facts).’ And:

‘dissemblance is distinguished here from dishonesty, fraud, misrepresentation, and deceit by the degree and purpose of dissemblance. For purposes of this opinion, dissemblance refers to misstatements as to identity and purpose made solely for gathering evidence. It is commonly associated with discrimination and trademark/copyright testers and undercover investigators and includes, but is not limited to, posing as consumers, tenants, home buyers or job seekers while negotiating or engaging in a transaction that is not by itself unlawful.’

The executive summary says:

‘In New York, while it is generally unethical for a non-government lawyer to knowingly utilize and/or supervise an investigator who will employ dissemblance in an investigation, we conclude that it is ethically permissible in a small number of exceptional circumstances where the dissemblance by investigators is limited to identity and purpose and involves otherwise lawful activity undertaken solely for the purpose of gathering evidence. Even in these cases, a lawyer supervising investigators who dissemble would be acting unethically unless (i) either (a) the investigation is of a violation of civil rights or intellectual property rights and the lawyer believes in good faith that such violation is taking place or will take place imminently or (b) the dissemblance is expressly authorized by law; and (ii) the evidence sought is not reasonably and readily available through other lawful means; and (iii) the lawyer’s conduct and the investigator’s conduct that the lawyer is supervising do not otherwise violate the New York Lawyer’s Code of Professional Responsibility (the “Code”) or applicable law; and (iv) the dissemblance does not unlawfully or unethically violate the rights of third parties. These conditions are narrow. Attorneys must be cautious in applying them to different situations. In most cases, the ethical bounds of permissible conduct will be limited to situations involving the virtual necessity of non-attorney investigator(s) posing as an ordinary consumer(s) engaged in an otherwise lawful transaction in order to obtain basic information not otherwise available.’

The Victorian solicitors’ conduct rules provide:

’28. Communications

A practitioner must not, in any communication with another person on behalf of a client:

28.1 represent to that person that anything is true which the practitioner knows, or reasonably believes, is untrue; or

28.2 make any statement that is calculated to mislead or intimidate the other person, and which grossly exceeds the legitimate assertion of the rights or entitlement of the practitioner’s client’.

Presumably it is only intimdiation which needs to grossly exceed the legitimate assertion of the client’s rights, and not misleading statements, though it is curious drafting if that is so. How could a statement calculated to mislead be made within the legitimate assertion of the client’s rights?

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