Monday, November 30, 2009
The Vermont Supreme Court affirmed a finding that two attorneys had violated Rule 4.1 and imposed a private admonition. The facts:
The parties stipulated to the following facts. Respondent attorneys were partners in a law practice and represented a client in a serious criminal matter. During trial, a potential witness contacted them, claiming to have information that tended to show their client’s innocence. Respondents obtained a continuance until the following day to ascertain the witness’s potential testimony. They quickly arranged to interview the witness by telephone and to record the call. During the call, the witness asked respondents whether they were recording the interview. One respondent said “No,” and the other, attempting to distract the witness, added “She’s on speaker phone, so I can hear you.” The witness later filed complaints with the Office of Disciplinary Counsel against both respondents. The parties jointly recommended that the hearing panel conclude that respondents had violated Rules 4.1 and 8.4(c). The disciplinary charges were premised at all times solely on the act of misleading the witness about the recording, and not on the recording itself.
The court majority concluded that the knowing false statement about the recording violated the Rule. The violation was not premised on the surreptitous recording, which was lawful. The court concluded that the actions did not reflect on fitness to practice.
A concurring justice noted that the decsion does not deal with the complexity of undercover operations:
It seems at least unclear whether the judicial branch, through an ethical rule, might unconstitutionally interfere with valid, and even statutory, executive branch functions directed by attorneys supervising undercover discrimination, consumer fraud, and criminal investigations that require surreptitious taping and deceptive impersonations, including those authorized by warrant. See, e.g., V.R.Pr.C. 8.4(a) (declaring it misconduct for a lawyer to violate the rules “through the acts of another”); V.R.Pr.C. 5.3(b) & (c) (making a supervising lawyer responsible for investigator compliance with the rules and professional obligations of the lawyer). Related separation of powers questions, as well as due process and equal protection issues, arise over judicial curtailment of otherwise legal and valid tactics available to public defender investigators looking into criminal allegations against their clients.
Not presented in an actionable context in the instant appeal, such issues remain unresolved. Equally unresolved, then, is the potential for ethical violation by attorneys involved in law enforcement and criminal defense who, without lucre or malice, oversee entirely legal investigative strategies executed by staff or agents. Failure of the rules to recognize and allow for justified and necessary deception in the course of law enforcement and defense investigation is reminiscent of Secretary of State Henry Stimson’s foolish prohibition of diplomatic codebreaking between the World Wars on the high-minded premise that “Gentlemen do not read each other’s mail.” Common sense might dictate that such a blind principle, like Rule 4.1 found violated in the instant case, ignores the legal and objectively legitimate demands of the real world.
These points are raised only to lament the unfortunate absurdity of this violation and to emphasize the need for the committee to reconsider the literal application of Rule 4.1 to executive and defense investigations relating to law enforcement.
A concurring and dissenting opinion takes the majority to task for not finding a Rule 8.4(c) dishonesty violation for what is characterized as "bold-faced lying. " (Mike Frisch)