Wednesday, July 15, 2009
The Virginia State Bar is accepting comments on a proposed ethics opinion that considers the propriety of the use of undercover tactics by officials responsible for the regulation of unauthorized practice. The opinion is summarized as follows:
This opinion addresses the ethical propriety of staff counsel to the UPL Committee supervising an undercover investigation to determine whether someone is engaging in the unauthorized practice of law. The staff counsel are not conducting the covert investigation, but have directed a lay staff investigator, regularly employed by the VSB, to perform the covert investigation. The tactics or techniques used by the investigator would involve some form of deception, i.e., misrepresentation of identity or purpose, in order to catch the suspect engaging in conduct that is unlawful or criminal. The Committee observes that one who engages in the unauthorized practice of law is committing a criminal act. It is generally known and very well accepted that law enforcement authorities, including government lawyers, are authorized to conduct or supervise undercover operations using deception to gather information about criminal conduct. The Committee believes that use of an undercover or “sting” operation by a lay investigator, under the direction of staff counsel, does not violate the Rules of Professional Conduct. The Supreme Court of Virginia has specifically approved a legal ethics opinion that recognizes a “law enforcement” exception to Rule 8.4 (c). The Committee also believes that, although undercover investigations involve some elements of misrepresentation and deceit, the conduct does not reflect adversely on the fitness or character of the lawyer directing or supervising a lawful criminal investigation.
The District of Columbia Court of Appeals condemned the use of such tactics in a bar discipline case where Bar Counsel had "deputized" two lawyers to pursue information about a possible scheme to "sell" a witness in a medical malpractice case. The lawyer under investigation had been approached by a nurse with highly useful information and had approached the lawyers to be retained as co-counsel.
The court majority held that Bar Counsel had exceeded its authority "by encouraging the two attorneys...to continue to negotiate with [the attorney] in order to determine whether the situation would unfold into a more clear-cut violation. Bar Counsel has a responsibility to educate the bar with the hope of preventing violations, if possible, not of encouraging them." A concurring opinion would not exclude the evidence obtained by covert means and takes issue with the suggestion that the proper role of Bar Counsel is to educate the target lawyer: "This is an important policy statement to which the entire court should speak by way of its rules."
The case is In re Sablowsky, 529 A.2d 289 (D.C. 1987).
Update: As the comment notes, the opinion has been adopted. (Mike Frisch)