Publication Date

10-2011

Document Type

Article

Disciplines

Law

Comments

This article was published in Nebraska Law Review in October, 2011.

Abstract

“In undertaking the privilege to practice law, I do solemnly swear that I will lie, deceive, misrepresent, and engage in fraud in order to serve my client’s and my own personal interests.”

It is doubtful that any American attorney believes that he or she has sworn such an oath (or openly advocates the use of such an oath for newly sworn attorneys). But does every American attorney share the same understanding of whether attorneys may ethically engage in deception? The issue of attorney deception has not enjoyed a thorough, open discussion necessary for a consistently applied standard on that issue. This must change. This Article seeks to start an open and honest discussion among American attorneys on whether attorneys may ethically engage in deception, and, if so, to what extent and under what circumstances.

As a general matter, attorneys must act ethically at all times. But what constitutes ethical behavior is open to debate. It seems straightforward to state that the American system of justice demands that attorneys should strive to ensure that they conduct themselves in ways that inspire public trust in the rule of law. As a self-regulated profession, that public trust finds itself manifested in a body of legal ethics that each attorney should strive to meet and exceed. Any doubt – whether collectively or individually – about whether attorney conduct improves public trust in the rule of law, the American system of justice, or the public’s perception of attorneys should be resolved well on the side of caution and not on the whimsical side of recklessness. That is, the line of ethical attorney behavior should always be drawn on the safe side of the line to avoid the rule of law of becoming suspect, the legitimacy of the American system of justice of being questioned, or the public’s losing faith in the honesty and trustworthiness of attorneys. Because of conflicting constituencies, however, how and where to draw ethical boundaries does not always lead to a single solution. In determining the boundaries of ethical behavior, attorneys are required to balance their duties to clients, the system of justice, participants in that system, and democratic society itself. Again, how does attorney deception impact the American legal system? That is the question that this Article seeks to address.

This Article explains that the American Bar Association’s (ABA’s) Model Rules of Professional Conduct (Model Rules) currently do not contain a deception exception – whether express or implied – that authorizes attorneys to freely engage in deception. Should ethics rules expressly authorize attorneys to freely engage in deceptive practices? Would attorney deception ultimately impair the American system of justice? This Article maintains that the Model Rules – and whatever rules that various states ultimately adopt – should not authorize attorney deception. The ethical determination that attorneys should not engage in deception, however, is not the end of the discussion. Society demands a broader debate about deception generally.

There are circumstances in which American society has widely accepted deceptive practices, whether employed by advocacy groups or law enforcement. For example, longstanding policies of federal and state governments employ deception in undercover criminal investigations, various civil-rights groups employ deception to root out and eradicate unlawful discrimination, and holders of intellectual property rights employ deception to ensure that others do not unlawfully infringe upon those rights. Although a certain amount of deception is required to support these investigative efforts (because those suspected of unlawful activity are unlikely to continue their lawlessness if an investigator reveals his true purpose), there is no sound public policy that requires attorneys to personally engage in the deception. This Article contends that the legal profession should not tolerate attorneys personally engaging in deception. Period. That does not mean, however, that ethics rules should prohibit attorneys from having the authority and capability to advise non-attorneys from using deception when otherwise lawful. That is, if a non-attorney enjoys the legal right to employ deception to root out lawlessness, then ethics rules should not exclude attorneys from providing legal advice in that otherwise legal process. To ensure that attorneys do not personally engage in deception while simultaneously permitting attorneys to provide legal advice to non-attorneys who wish to lawfully employ deception, this Article promotes a well-defined investigation exception to the prohibition of attorney deception. Perhaps a more apt title is the “investigation deception exception.”

This Article proposes an express investigation deception exception to the Model Rules, which would authorize an attorney, government or private, who is acting in his or her representational capacity, to utilize a non-attorney third-party to employ deception under well-defined circumstances. This exception would never allow a practicing attorney to personally use deception to further a client’s objectives (but an attorney who is not acting in his or her representational capacity (e.g., an agent with the Federal Bureau of Investigation) would be able to employ deception under narrow circumstances if not otherwise prohibited by law). If the ABA (or individual states for that matter) adopt this Article’s express investigation deception exception, the narrow exception would allow attorneys to simply provide legal advice to non-attorneys who choose to use otherwise lawful deception to investigate unlawful activity that otherwise would go undetected – instances such as rooting out unlawful discrimination, protecting intellectual property rights, and directing criminal investigations. Since society has not outlawed the use of deception in those circumstances generally, then ethics rules governing attorney behavior should reflect societal mores. Indeed, if society authorizes deception in those types of cases already, then it would seem counter-productive to remove attorneys altogether from providing legal advice to those investigators through the misplaced application of attorney ethics rules. This proposed investigation deception exception attempts to balance society’s need to investigate unlawful conduct by all lawful means with the need of attorneys to be held to the highest ethical standards while promoting transparency in the legal profession. This proposal should not, in any way, diminish an attorney’s ethical obligations under the Model Rules or remove an attorney from a client’s cause that may desperately seek legal advice. Rather, the proposed rule recognizes areas in which society has found it desirable to employ deception to discover lawless conduct and makes clear that attorneys should not be discouraged from providing legal advice to those non-attorneys who employ lawful deception under narrow and well-defined circumstances.

Currently, only a few states have engaged in an open debate on the issue of attorney deception, which has resulted in amendments to those states’ ethics rules to explicitly address the issue. That is the proper way to address the issue, rather than encouraging each individual (and inherently self-interested) attorney to create implied deception exceptions to ethics rules. Such an ad-hoc, case-by-case, individualistic approach to deception exceptions may cause an individual attorney to later face ethical misconduct charges, even though the attorney believed that his or her deception should be authorized, or, perhaps worse, may cause substantial damage to the legal profession as a whole and, ultimately, the American system of justice. Although some members of the legal community argue for an implied deception exception, this approach arguably would promote uncertainty in outcome and inspire an ends justify the means mentality within the legal community. The best approach would be for attorneys to openly and fully debate the issue of attorney deception and then clearly define the boundaries placed on the use of deception. To that end, this Article contends that the ABA should take the lead and adopt this Article’s express investigation deception exception to the Model Rules. Once the ABA fully debates the issue of attorney deception and establishes an analytical framework on how best to address the issue, then the states undoubtedly will be confronted with the issue of attorney deception more directly. To get the debate on attorney deception rolling, please consider reading this Article and encouraging your state bar to fully enter the discussion.

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