August 2014 - Lawyers’ Ethics in Informal Investigations
by Joseph R. Wilbert
At the outset of cases, lawyers are often armed with only a few key facts and some leads to develop. Rarely is a complete picture of the facts already in place; it’s the lawyer’s job to investigate, develop the facts, and paint that picture. And under California law, a lawyer has a duty “to represent his client zealously within the bounds of the law,” and—to the extent permissible—to use investigations to advance the client’s interests. See People v. McKenzia, 34 Cal. 3d 616, 631 (1983) (citation and emphasis omitted), overruled on other grounds, People v. Crayton, 28 Cal. 4th 346, 364-65 (2002).
But the duty of zeal is not unlimited. Rather, a law firm’s zealous investigation must occur within the confines of legal and ethical rules that regulate the behavior of lawyers. Many such considerations come into play, from duties concerning honesty to rules regarding ex parte communications with represented parties. Indeed, honesty is paramount. The California Business and Professions Code broadly states that a lawyer’s “act involving moral turpitude, dishonesty or corruption” is “a cause for disbarment or suspension,” regardless of whether the act is a crime. Cal. Bus. & Prof. Code § 6106 (West 2014).
This article addresses certain ethical issues lawyers face while investigating their cases. Specifically, it discusses witness interviews and the extent to which lawyers are forbidden from using dishonesty to investigate facts.
Witness Interviews: Uses and Abuses
Witness interviews are an invaluable tool for gathering helpful evidence. Highly relevant information often lies in the hands of third parties. While it is usually possible to obtain that information through formal subpoenas, informal interviews have multiple advantages. They are cheaper. They allow for unilateral discovery of the witness’s version of the events and attitude toward the parties. And they permit questioning and rapport building, unimpeded by opposing counsel.
The potential exists, however, for abuse. For example, lawyers might intentionally or unintentionally suggest desired answers to witnesses. Lawyers might want to probe whether the witness knows confidential information belonging to others. And lawyers might be tempted to mislead the witness about the lawyer’s identity or reasons for the interview, in hopes that the witness will be more forthcoming (especially if the witness is aligned with an opponent).
For these and other reasons, multiple ethical rules come into play regarding witness interviews. If investigatory actions cross the ethical line, courts can and will respond. Disciplinary authorities, too, may take notice and impose sanctions for improper investigatory tactics. Thus, it is essential for lawyers to understand the rules governing witness interviews.
The Prohibition of Ex Parte Contacts With Represented Parties
First, let’s review black-letter ethics. California’s ethical rules prohibit lawyers from interviewing certain categories of individuals. Where an attorney knows that an opposing party is represented by counsel, the attorney may not—either “directly or indirectly”—communicate with that party about the subject of the representation, absent opposing counsel’s consent. Cal. R. Prof’l Conduct 2-100 (2014). That rule extends to co-parties as well as adversaries. Hernandez v. Vitamin Shoppe Indus., Inc., 174 Cal. App. 4th 1441, 1460 (2009). And when the represented party is a corporation, association, or partnership, lawyers may not communicate with certain categories of people associated with that party, such as an “officer, director, or managing agent of a corporation.” See Cal. R. Prof’l Conduct Rule 2-100(B) (2014).
On the other hand, lawyers may freely contact unrepresented witnesses or parties, or former personnel of corporations, associations, or partnerships. That is so “even if the former officer, director, etc. is still a minority shareholder in the adverse party.” Hon. William F. Rylaarsdam, et al., California Practice Guide: Civil Procedure Before Trial, § 1:471.33 (Rutter Group 2014). Further, a lawyer may communicate with current personnel of corporate parties, so long as they do not fit the definition of a “party” in Rule 2-100(B). An enlightening prior Ethically Speaking column explored in detail the issues that arise when dealing with employees of adverse parties. Robert K. Sall, “Who Ya Gonna Call?” A Primer on Ex Parte Contacts with Employees of Adverse Parties, Orange County Lawyer, March 2009, at 42 (available upon request).
The Gray Area of Covert Investigations
Certain gray areas of witness interviews are not directly addressed by California’s rules. For instance, to what extent can lawyers interview witnesses while not disclosing their true identities or the purpose of the interview? Can lawyers ethically use undercover-style methods, including deceit, to obtain information from witnesses? The practice is not uncommon. One commentator opines, “lawyers throughout the United States supervise undercover investigators who misrepresent their identities in order to garner admissions or other evidence from unsuspecting would-be adversaries.” Barry R. Temkin, Deception in Undercover Investigations: Conduct-Based vs. Status-Based Ethical Analysis, 32 Seattle U. L. Rev. 123 (2008). Indeed, such tactics are well-known ways to prove housing discrimination, where fake buyers (or “testers”) are often used to gather evidence that sellers or landlords are discriminating against certain purchasers or renters.
While authorities throughout the country disagree about the permissibility of such tactics, some courts have said that the “prevailing understanding in the legal profession is that a public or private lawyer’s use of an undercover investigator to detect ongoing violations of the law is not ethically proscribed, especially where it would be difficult to discover the violations by other means.” Cartier v. Symbolix, Inc., 386 F. Supp. 2d 354, 362 (S.D.N.Y. 2005). According to this line of thought, the “limited use of deception, to learn about acts of wrongdoing,” is accepted in the legal profession. Apple Corps. v. Int’l Collectors Soc’y, 15 F. Supp. 2d 456, 475 (D.N.J. 1998); Gidatex v. Campaniello Imports, Ltd., 82 F. Supp. 2d 119, 126 (S.D.N.Y. 1999) (holding that “[t]he use of private investigators, posing as consumers and speaking to nominal parties who are not involved in any aspect of the litigation,” does not violate New York’s disciplinary rules because the investigators did not “trick [the witnesses] into making statements they otherwise would not have made”). Another federal court gives an elucidating example by stating that lawyers “probably can employ persons to play the role of customers seeking services on the same basis as the general public. They can videotape protected employees going about their activities in what those employees believe is the normal course. That is akin to surveillance videos routinely admitted.” Hill v. Shell Oil Co., 209 F. Supp. 2d 876, 880 (N.D. Ill. 2002).
Conversely, some authorities have held that lawyers’ misrepresentation of their identity to obtain information—or overseeing investigators doing the same—violates ethical rules. For instance, in one Oregon case, an attorney represented chiropractors in potential fraud claims against an insurance company. In re Gatti, 8 P.3d 966, 970 (Or. 2000) (en banc). To investigate the claims, the attorney called certain individuals and pretended to be a chiropractor. Id. The attorney, along with notable amici (including the United States Department of Justice), argued that public policy permits “investigators and discrimination testers to misrepresent their identity and purpose” while “investigating persons who are suspected of engaging in unlawful conduct.” Id. at 975. The Oregon Supreme Court disagreed, holding that the attorney’s misrepresentation of his identity “with the intent of deceiving” others “violated his duty to the public to maintain professional integrity.” Id. at 977. Some other authorities concur that attorneys generally may not use deception to obtain information in investigations. See, e.g., Shane Witnov, Investigating Facebook: The Ethics of Using Social Networking Websites in Legal Investigations, 28 Santa Clara Comp. & High Tech. L. J. 31, 55-58 (2011) (“Investigating Facebook”) (contending that deception in civil cases may be acceptable in narrow circumstances involving housing discrimination or intellectual property violations, but likely is generally unacceptable, particularly when the target is personal information of individuals).
However, after the Gatti case, the Oregon Supreme Court revised Oregon’s ethical rules to permit deception in investigations. The new Oregon rules allow lawyers to “obtain information on unlawful activity through the use of misrepresentations or other subterfuge,” if certain conditions are met. Or. R. Prof’l Conduct 8.4(b) (2014).
Where Does California Stand?
California does not have a rule like Oregon’s that explicitly permits lawyers to obtain information through misrepresentations or subterfuge. But by the same token, California is the only state that has not adopted the American Bar Association’s model rule forbidding lawyers from making misrepresentations. See Thomas H. Moore, Can Prosecutors Lie?, 17 Geo. J. Legal Ethics 961, 970 (2004).
Despite the absence of a clear ethical rule on point, the California Business and Professions Code contains provisions suggesting that lawyers should not deceive others. As noted above, a lawyer may be disbarred or suspended for committing any act of “dishonesty.” Cal. Bus. & Prof. Code § 6106 (West 2014). Further, it is a misdemeanor in California for an attorney to commit “deceit or collusion, or consent to any deceit or collusion, with the intent to deceive the court or any party.” Cal. Bus. & Prof. Code § 6128 (West 2014).
Moreover, at least one local bar association has concluded that an attorney may not use misrepresentations in investigations. San Diego Cty. Bar Assoc., SDCBA Legal Ethics Opinion 2011-2 (2011) (“San Diego Opinion”). The San Diego Opinion acknowledged that California does not have an express legal ethical rule prohibiting “misrepresentation.” Nevertheless, it looked to rules forbidding lawyers from misleading judges or other lawyers and held that those duties “surely preclude an attorney from deceiving a lay witness,” who is typically less equipped to handle lawyerly misrepresentations than judges or lawyers. The San Diego Opinion also took the analysis a step further. It suggested, in the context of sending witnesses “friend requests” on social media, that lawyers would commit ethical violations if they failed to disclose the purpose of their requests, even if they did not make affirmative misrepresentations. But see N.Y. City Bar Assoc. Comm. on Prof’l Ethics, Formal Opinion 2010-2, at 2 (2010) (reaching a contrary conclusion).
But when the party being investigated is represented, Rule 2-100 leaves little wiggle room. A lawyer, at least in civil cases, should not make or oversee any contact with the represented party, misleading or otherwise.
In the context of represented parties, Rule 2-100 even affects government lawyers. The Ninth Circuit has taken a case-by-case approach to determine whether “pre-indictment, non-custodial communications by federal prosecutors and investigators with represented parties” violate Rule 2-100. United States v. Carona, 660 F.3d 360, 364 (9th Cir. 2011) (noting, however, that in the majority of Ninth Circuit cases on point, “contact between undercover agents or cooperating witnesses and represented suspects did not violate Rule 2-100”) (quotation marks omitted), cert. denied, Carona v. United States, 132 S. Ct. 2102 (2012). Interestingly, on the topic of deception, the Carona case declined to find an ethical violation where the government used fake subpoena attachments to trick an individual into making incriminating statements. Carona, 660 F.3d at 922. But courts give the government leeway to use certain deceptive tactics in criminal investigations, and civil lawyers should not assume that courts will grant them similar indulgences. See id. (“[I]t has long been established that the government may use deception in its investigations in order to induce suspects into making incriminating statements.”); Witnov, Investigating Facebook, 28 Santa Clara Comp. & High Tech. L.J. at 77-78 (arguing that deception in investigations should be generally permissible in criminal cases).
In sum, California courts have not taken conclusive positions regarding the use of deception in civil investigations. Lawyers may be tempted to use deceptive activities to gather information because witnesses might be more forthcoming if they do not know the reason for the interview. But lawyers use deception at their own risk, since multiple ethical and legal rules potentially come into play. Lawyers considering whether to use deceptive interviews should carefully consider the applicable rules in the context of the case at hand, and when in doubt, be truthful.
Joseph R. Wilbert is the managing partner of Wilbert & Wilbert LLP and a member of the Orange County Bar Association’s Professionalism and Ethics Committee. He can be reached at firstname.lastname@example.org.