September 2021 Ethically Speaking - Navigating the Ethics of Evidence Gathering

by Fred L. Wilks

A civil litigator’s investigative toolkit need not be limited to the formal procedures set forth in the Civil Discovery Act. There are advantages to conducting investigations outside the bounds of formal discovery. Evidence can be obtained without an adversary’s knowledge and without obstruction. Testimony can be obtained through interviews without incurring the expense of depositions. Investigative methods involving covert activity, pretext, or subterfuge can be used to catch witnesses off guard.

Informal investigations—whether conducted by lawyers personally or by another acting at their direction—require lawyers to pay close attention to their ethical obligations. Use of the Civil Discovery Act is comparatively safe. Discovery disputes are commonplace, but the discovery statutes governing lawyer conduct are clear, are fairly detailed, and the parties can always turn to the courts to resolve disputes in advance of disclosure. By contrast, the boundary between legitimate investigatory methods and unethical conduct, at times, may be difficult to define. And lawyers can face accusations of wrongdoing after-the-fact. When engaging in undercover or covert investigations, in particular, lawyers can easily find themselves operating in an ethical gray area with seemingly few bright-line rules.

To state the obvious, investigative methods can implicate civil and criminal violations of law in a variety of ways, including unlawful pretexting, witness intimidation, offering bribes to witnesses, trespassing, unlawful eavesdropping or secret recordings, and conduct that violates computer hacking laws. This article focuses on the rules of ethics, and does not address otherwise unlawful conduct.

Informal Witness Interviews

Even simple witness interviews may implicate several ethical rules. The first and most obvious question that should come to a lawyer’s mind is whether the witness is represented by counsel. California Rule of Professional Conduct (CPRC) Rule 4.2, the “no contact” rule, prohibits a lawyer from communicating directly or indirectly about the subject matter of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer. Notably, under predecessor Rule 2-100, there was authority stating that this rule applied only when the represented person was a “party” witness, not a third party. See In re Dale, 4 Cal. St. Bar Court Rptr. 798, 806 (Review Dept. 2005) (“we are not at liberty to re-write rule 2-100, which by its plain language is limited to a represented ‘party’”). Rule 4.2 eliminates any such ambiguity, applying the “no contact” rule to any represented “person.” Note also that for the purpose of Rule 4.2, once a class action is certified, represented persons include absent class members. See Hernandez v. Vitamin Shoppe Indus. Inc., 174 Cal. App. 4th 1441, 1495 (2009).

More difficult questions can arise when the targets of informal interviews are employees or other constituents of an organization, and that organization is represented by another lawyer. Not every employee of a represented organization is a “represented” person for the purposes of Rule 4.2. The rule prohibits communications with two classes of persons in this context. It prohibits communications with a current officer, director, partner, or managing agent of the organization—i.e., a person with substantial discretionary authority over decisions that determine organizational policy. CPRC 4.2(b)(1). It also prohibits communications with an employee “if the subject of the communication is any act or omission of such person in connection with the matter which may be binding upon or imputed to the organization for purposes of civil or criminal liability.” CPRC 4.2(b)(2). Thus, for instance, where the subject matter of the communication does not concern a non-managerial employee’s own acts or omissions concerning the dispute, but only the employee’s knowledge of conduct committed by others within the organization, an outside lawyer may communicate with the employee as an unrepresented percipient witness. See Doe v. Superior Ct., 36 Cal. App. 5th 199, 208-09 (2019).

A lawyer’s communication with unrepresented witnesses is also subject to ethical limitations. Rule 4.3(a) provides that when communicating on behalf of a client with a witness who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested in the matter. The rule also requires the lawyer to make reasonable efforts to correct any misunderstanding in that regard if the lawyer reasonably should know the witness misunderstands. Rule 4.3(a), which had no counterpart under the former version of the CPRC, also provides that if the lawyer knows or should know that the interests of an unrepresented witness are in conflict with the interests of the client, the lawyer shall not give legal advice to the witness, but may advise the person to secure their own lawyer. Further, Rule 4.3(b) provides that a lawyer must not seek to obtain from an unrepresented witness privileged or other confidential information the lawyer knows or reasonably should know the witness may not reveal without violating a duty to another. For instance, if the witness is a former officer or employee of an organization, the lawyer must not inquire about communications the witness may have had with the organization’s counsel. See State Farm Fire & Cas. Co. v. Superior Ct., 54 Cal. App. 4th 625, 652 (1997), as modified (May 1, 1997).

What if a lawyer concludes, after interviewing a witness, that the testimony the witness would likely give undermines the legal position of the lawyer’s client? Plainly, the lawyer may not induce the witness to give false testimony. See CPRC 3.4(c). Nor may a lawyer request that the witness refrain from testifying. Rule 3.4(a) prohibits a lawyer from obstructing another party’s access to evidence, including a witness. Rule 3.4(e) also prohibits a lawyer from advising a witness to remain hidden or to leave the jurisdiction of a tribunal for the purpose of making that person unavailable as a witness. See also Snyder v. State Bar, 18 Cal. 3d 286, 291 (1976).

Even where an interview reveals what appears to be helpful testimony, relying on an informal interview can present problems. Unless the witness provides a statement in writing, an investigating lawyer runs the risk that the witness will retract helpful statements later, when placed under oath. Plainly, a lawyer cannot solve this problem by offering the witness a monetary incentive. Regardless of whether a lawyer is seeking to elicit truthful testimony, the lawyer may not pay, or offer to pay, a witness compensation contingent on the content of the testimony or the outcome of the case. CPRC 3.4(d). A lawyer may only pay a witness reasonable non-contingent compensation for loss of time and for expenses reasonably incurred. Id. Moreover, if impeachment of the witness might become an issue, the lawyer should consider in advance who should conduct the interview. Impeaching a witness with a prior interview can pose a problem given that, absent a client’s informed written consent, a lawyer may not act as an advocate in a trial in which the lawyer is likely to become a witness. CPRC 3.7.

Deceptive or Covert Investigative Methods

The discovery process essentially relies on the honor system, requiring litigants to trust adversaries to divulge evidence they might prefer not to reveal. The use of “covert” investigatory methods may uncover information or behavior that might not otherwise be forthcoming. Deception and subterfuge can be effective. But there is a difference between legitimate investigative techniques involving deception, on the one hand, and ethically impermissible conduct, on the other. Defining the boundary between the two can be elusive.

The current CRPC, adopted in 2018, introduced rules that had no counterparts under the prior version of the rules; new rules that seemingly implicate deceptive investigation tactics. For instance, Rule 4.1(a) prohibits a lawyer from knowingly making a false statement of material fact or law to a third person. Comment 1 to Rule 4.1 clarifies that a nondisclosure may be the equivalent of a false statement where a lawyer makes a “partially true but misleading statement or material omission.” This raises the question: may lawyers, or those acting at their direction, interact with potential witnesses using a false identity or under otherwise false pretenses? May they use pseudonyms online to gather information from unwary netizens? Comment 4 to Rule 4.1, suggests that the answer may be a qualified yes. Regarding a “lawyer’s involvement in lawful covert activity,” the comment refers the reader to Rule 8.4, Comment 5, which as discussed below, seemingly approves of deceptive or “covert” investigations.

On its face, Rule 8.4(c) prohibits any form of deceit, stating that a lawyer may not “engage in conduct involving dishonesty, fraud, deceit, or reckless or intentional misrepresentation.” The text of Rule 8.4(c) makes no exceptions and, unlike Rule 4.1(a), does not even include a “materiality” qualifier. The CRPC in the form that existed prior to 2018 included no similarly broad, seemingly all-encompassing, prohibition against dishonesty under all circumstances; however, the State Bar Act contained such a prohibition. Cal. Bus. & Prof. Code § 6106 (prohibiting lawyer moral turpitude, dishonesty, or corruption); see also Cal. Bus. & Prof. Code § 6128(a) (imposing misdemeanor criminal liability on lawyers engaging in or consenting to any deceit or collusion “with the intent to deceive the court or any party”). Business & Professions Code section 6068(d) has always required lawyers to employ only those means “that are consistent with the truth,” but the scope of that rule is unclear. As one court recognized, the quoted statutory language goes on to state “and never to seek to mislead the judge or any judicial officer,” thus suggesting that the statute merely addresses a lawyer’s duty of candor to the court. See Cakebread v. Berkeley Millwork and Furniture Co., Inc., 218 F. Supp. 3d 1040, 1045 (N.D. Cal. 2016). In Cakebread, the plaintiffs sought sanctions against their adversary’s counsel, contending that he acted unethically when he contacted the plaintiffs’ real estate broker and misled her into believing he represented a potential buyer of plaintiffs’ real property. He did so in order to obtain photographs and design plans for use in litigation. Although the court characterized the lawyer’s conduct as “troubling,” “questionable,” and “misguided,” it concluded that the lawyer did not clearly violate the version of the CRPC in effect in 2016. Id. at 1048. Notably, however, the court based its decision, in part, on the fact that ABA Model Rules 4.1(a) and 8.4(c), the counterparts of CRPC 4.1(a) and 8.4(c), were not at that time binding on the lawyer. Id. at 1046-47. Now that California has adopted these rules, does that mean that the ethical ground rules for covert investigation have changed? The San Diego County Bar Legal Ethics Committee, for instance, has opined that even a lawyer using his or her true name would violate ABA Model Rule 8.4 by “friending” an unrepresented witness on social media without disclosing the lawyer’s purpose of obtaining information useful to a lawsuit. See San Diego Cnty. Bar Ass’n Legal Ethics Comm. Op. 2011-2.

Comment 5 to Rule 8.4 seemingly approves of “covert activity” in investigations into violations of law, but it is not particularly illuminating in terms of providing guidance. It states that Rule 8.4(c) does not apply where a lawyer supervises “lawful covert activity in the investigation of violations of civil or criminal law or constitutional rights, provided the lawyer’s conduct is otherwise in compliance with these rules and the State Bar Act.” The comment confirms that lawyers engaging in covert investigations do not get a free pass to engage in investigatory conduct that is otherwise “unlawful” or a violation of the CRPC. But that goes without saying: it should come as no surprise that lawyers face potential discipline when they participate in unlawful pretexting, eavesdropping or secret recordings, creative electronic or online investigation that may violate state or federal computer hacking laws, and the like. Beyond the concept that a lawyer must follow the law and CPRC, one is left to wonder exactly what type of covert activity is permissible.

Curiously, Comment 5 states that a lawyer may “supervise” covert activity, but is silent on the issue of lawyers themselves participating in covert investigations. Is this silence meant to signal that a lawyer may only supervise covert investigations, and not actively participate in them? It seems unlikely that such a distinction may be drawn by implication from this comment, particularly where a subdivision of that same rule, Rule 8.4(a), makes clear that it is professional misconduct not only for a lawyer to violate ethical rules, but also to “knowingly assist, solicit, or induce another to do so, or do so through the acts of another.” The line between ethical and unethical conduct should not be drawn based on whether a lawyer personally conducts an investigation or hires others to do so.

Another curiosity is that the comment to Rule 8.4(c) seems to clearly contemplate that lawyers may supervise covert investigations to uncover, for instance, ongoing civil rights violations or intellectual property rights violations. But is it equally permissible to employ deception to obtain, for instance, admissions or impeachment evidence solely concerning past conduct? The language of the comment does not seem to justify a distinction in that regard. But the idea that a lawyer, when investigating the historical facts involved in routine litigation, may obtain evidence under false pretenses is troubling.

The better reading of Comment 5 appears to be as a clarification that Rule 8.4(c), prohibiting “conduct involving dishonesty,” is not itself intended to prohibit deception in connection with covert investigations into violations of law or constitutional rights. But such investigations are still otherwise governed by the CRPC, including Rule 4.1, which prohibits false or “partially true but misleading” statements, and the State Bar Act, including Business & Professional Code sections 6068(d), 6106, and 6128. This is likely to remain an area resistant to bright line rules, given that the form covert investigations may take can be as varied as the human imagination. Ultimately, the line between legitimate covert investigation and unethical deception will need to be defined by the courts, likely on a case-by-case basis.

Fred L. Wilks is a business litigation partner at Hodel Wilks LLP in Irvine, California, and can be reached at FWilks@hodelwilks.com.