May 8, 2012
A client has come to you for help alleging that he tried to rent an apartment, but the landlord was engaging in discriminatory practices and would not rent to him because he was Muslim. How far can an attorney go in an investigation to try to obtain additional evidence of discrimination? Can the attorney call up the landlord and feign interest in renting and pose as a person belonging to a minority or other discriminated class of persons? Suppose you’re investigating fraudulent commercial practices. Can you call up, pose as someone else, and feign interest in purchasing the product in question, when you have no intention of purchasing the product? The short answer to both of these questions is no.
The above are examples of conduct that would violate Rule 8.4(c), which prohibits conduct involving dishonesty, fraud, deceit, or misrepresentation. It also likely would violate Rule 4.1 which requires truthfulness in statements to others when representing a client. In the second scenario, if you actually purchase the product in question and use your real name, the argument is that you then you become an actual consumer, and there is no misrepresentation. It is unclear, however, whether you would still violate Rule 4.3, which states that when you are communicating with an unrepresented person whose interests are adverse to your client, if the person misunderstands your role in the matter, you must make reasonable efforts to correct the misunderstanding.
In addition, you cannot ask a third party to do what you could not do. For example, suppose you are defending an employer against a plaintiff who is claiming injury on the job. Your client believes that plaintiff is not injured, but you just need proof. Can you send a private investigator out to “set up” the plaintiff, pose as someone he is not, and catch the plaintiff in the act of exerting himself? It sure would be great, but you can’t do that either.
The State Bar recently adopted an unpublished opinion, however, that makes exception to this rule for government lawyers if acting in the scope of employment and as part of his official duties. Basically, this means that attorneys involved in government-sanctioned undercover operations are OK. All that is to say that the rest of us should abandon thoughts of undertaking our own “sting” operation.