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Deception in Undercover Investigations: Conduct-Based Vs Deception in Undercover Investigations: Conduct-Based vs. Status-Based Ethical Analysis Barry R. Temkint 1. INTRODUCTION The ABA Model Rules of Professional Conduct (Model Rules), by their terms, bar lawyers from engaging in conduct involving "dishonesty, fraud, deceit or misrepresentation." 1ye rsT frhome ci rcuMmveontidng tehe lrul es by proxy. Yet, lawyers throughout the RUniteud Stlatese supservis e undercover investigators who misrepresent their aidentitiles ins ordeor to garner admissions or other evidence from unsus- pectinrg woeuld-bve adeversanries. These adversaries believe that they are tdealin g with members of the general public, not investigators who plan lto help aarrest or swue them.- There has been some debate about whether lawyer involvement in undercover deception is or should be barred by the literal language o f Model Rule 8.4, which proscribes deceit and dishonesty? There is a ten- sion between the language of the Model Rules and the actual practice in most jurisdictions, in which government lawyers, especially prosecutors, regularly supervise undercover investigations. Lawyers who supervise undercover investigations employ deception, albeit, generally speaking, indirectly through investigators. A federal prosecutor supervising a criminal terrorism investigation approves of the use of a false name and identity by the undercover investigator. A civil rights attorney preparing t Barry R. Temkin is an adjunct professor at New York Law School and Chair of the New York County Lawyers Association Professional Ethics Committee. The views expressed in this article are those of the author alone, as are the errors. The author thanks Elizabeth Chambliss, Carol A. Buck- ler, and James B. Kobak, Jr., for generously reviewing and commenting on an earlier draft of this article. The author further acknowledges the assistance of Johara P. Tucker, New York Law School class of 2008, as a research assistant. T he author welcomes comments at Barry.Temkin@gmail. corn. I MODEL RULES OF PROFT CONDUCT R. 8.4(c) (2008) [hereinafter MODEL RULES]. 2. Id. 123 124 S e a t t l e University Law Review [ V o l . 32:1:123 to bring a civil housing discrimination case assists an undercover investi- gator in assuming a false name and identity that is used to deceive the target of the investigation, who presumably would not make damaging admissions to a fully-disclosed agent of a civil rights organization. A few recent examples help to illustrate the need for more guidance in attorney-supervised investigations. The Hewlett-Packard scandal di- rected public attention not only on pretexting, 3o f ubnduertc oveor innves tigattionhs, aes w ell as attorneys' responsibility for the wtechnhiqueos utlilizeed by investigators under the attorneys' supervision. p4th e Icaonursen of ionvesptigatling ycorporate leaks to the press from a member of the Hewlett-Packard board of directors, HP in-house counsel Kevin Hun- saker approved the use of pretexting by investigators, who then obtained confidential phone records not only from the suspected board members, but also from nine journalists and their relatives. p5o seTd ahs thee tarigent bvoared msemt biergs ina order to illegally obtain confiden- tial telephone records. 6 _Another illustration of attorney s pen isior of undercover investi- gations arises from a recent Wisconsin case.7 A F n ) o eby a WiSCODSiii referee exonerated criminal defense lawyer Stephen Hur- bleyr, uwhaorsey i nvedstigeatocr usieds a ruiseo to ntrick a teenage boy into exchang- ing his computer for a new laptop. 8cu seHd uof rchl ield my o lestation. r9tr icekHedpi thesi e complainings e n t weitnedss into sumndering his computer, which aiconntavined sevitd eingce aoft poornrography obtained fro in other sources. s,1W1 is3c ou'nTsinh sOefficpe of Leawyecr Retgulat ion tiled an ethics complaint against auHurleys- allegingci nthat -thge inv estigation involved fraud, deception and dis- a f a l s 3. "Pretextine has been defined as "a practice where iin individual lies abotit her identity in -e opThe Trurth Behiend Pretetscting1e' Apr. 2007, hnprilwv,rw. !kin C .coireThe-Truth-Behind-Pretexting-in-house-Investigations-and-Profess rn. I n - sH a u eg e , dIinnnat-vReesosonst ibiiligty-Ca otncieronsiatm. 4.1d en . ; 5. Arenz, supra note 3; James B. Stewart, The Kona Files, How an 0147cl ra n d Noug-ht Scandal ta Hewlett-Packard THE NEW 'YORKER, Feb. 19 8 tP r o f e s ,imi jsoteunr nwa li itsht s InLtened tao Skue sHewlett-Packard Over Surveillariee, N.Y. TmEs, May 7, os i o n a l ,2001, 2 6 at. C A2. 0 0 7 , a t 1 5 2 , oR e s p o n s 1 56. Se9e Stanley- 6 S. A0rkin: & can R • DO'Brien, Eaffective L-is of Private Investigators by illtorneys b1i 1.Yb,L.1i,, Dlec. i2 6t, y , t-C o7. Seen Pcoliteical mCapsital, littp://politcal-capital blogspot.corn/2008/02/professional-co a2a, g0a0in7st,-i nadaisotn.h tml (Feb. 6, 2008, 12:09 EST). i3 . 8.-See id.; Supreme Court Referee: Hurley Didn't Break Ethics Rules, LA CROSSE TRIBUNE, 'nF eb. 6, 2008, -cinafter Supreme Court Referee]. a v a 9l. lSaupreme Court Referee, sup a note 8. o 10. Id bn i e af t hi t t p . / /d we w w . l an c r o s st e t r i b ui n e . c oa m i a r tl i c l e s /o 2r 0 0 8 / 0p 2 / 0 6 / wr i l 0 6 wi i s 0 6 .vt x t [i hl ee rg ee -d i n f o r m a t i o n t h a t s h e i s n o t e m i t t e d t o P a w i c k M . A r e n z , 2008] D e c e p t i o n in Undercover Investigations 1 2 5 honesty." But the special referee dismissed the charges, noting that the ethics rule was vague, ill-defined, and in any event trumped by the law- yer's duty to his client. Iy2e r, who engaged in deception. The court-appointed referee, noting that M"[a]o mrane'so libverety rwa, s at stake," stated that the lasAryer's conduct, while ideceittful, w as not unethical." w Saome csourts a nd commentators have opined that deception is sim- tply nevher peremitted by attorneys under any circumstances. i1ot4h nerI junvris dceictoiosnns tharvea asmetn,ded their ethics rules to permit lawyers to supervise undercover investigations, but only government lawyers, and i g a t o r only in criminal prosecutions." A few authorities have held that decep- , tive undercover investigative techniques are permitted to combat dis- cnriminationo and to enforce trademarks." This Article argues that it is tinherently subjective and value-laden to posit that one substantive sub- jectt area ofh the law justifies indirect deception, while another does not. eThis Article recommends that ethics rules should focus on the conduct of tlhe attorneay, rather than on the subject matter of the specific case or on wthe status of- the attorney's client. For the sake of this Article, attorney supervision of undercover in- vestigations will be analyzed along two conceptual axes. Axis 1 consid- ers the nature of the substantive subject matter of the underlying claim (e.g., trademark or criminal) and the status of the attorney (public vs. private or plaintiff vs. defense). This approach will be called the "status- based axis?" 1ga7t or, as the attomey's agent. The Axis 2 factors include the following: Athex exitesnt of the misrepresentation; whether the deceit is direct or indi- 2rect; t he existence of other, alternative methods of obtaining the same feviodencce; uand whether the questioned conduct violates another ethics srulee ors prin ciple of substantive law. Such rules include the "no-contact rule" of Model Rule 4.2 and the various laws and regulations regarding o n t 11. Id h 12. Id 13. See id. e 14. S ee, e.g., In re Pautler, 47 1 cinvolv3eo themselves in deception, even with selfless motives ....") ; Michael Bonsignore, Rules Exist fnor a R. 3deads on1: A1 C7om5m,en tary on Lawyers Hiring Investigators to Partake in Deceptive Tactics, 21 GEO. J. LEGAL ETHICS 655, 662 (2008) ("Allowing either direct deceptive tactics, or employing an u 1c 1 8 0 invest(igatoCr to oengalge ino su.ch t actics, when the information is attainable within the system is incon- tgruent2 with the0 mo0ral ba2sis of) the ad versarial system."). 15. See infra Part V. ( e n o 16. See, e.g., Apple Corps Ltd. v. Intl Collectors Soc'y, 15 F. Supp. 2d 456, 475 (3.1%/..1. f1998).b a n c ) t 17. Alternatively, Axis 1 could be labeled the "subject-matter axis" because it is dependent on the su(bstan"tive[ natuPre o]f the client's underlying claim. h r o s e c u t e o r s a c t a n n o t t o r n e y a n d i n v e s t i - 126 S e a t t l e University Law Review [ V o l . 32:1:123 pretexting and breach of privacy, some of which were adopted in the wake of the 2006 Hewlett-Packard corporate scanda1. 18 The development of status-based exceptions to ABA Model Rule 8.4—exceptions based on the status of the attorney or the client's under- lying substantive claim—raises interesting and troubling issues. Where will the line be drawn? Should attorney-supervised undercover investi- gations be limited to certain substantive areas of practice? I f a prosecu- tor can employ an undercover investigator to deceive others in a death penalty case, perhaps the defense attorney in the same case should be permitted to instruct an investigator to take the same liberties with the truth.
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