John Gaal's Ethics Corner

Q. I am in the midst of some contentious litigation involving a company's refusal to hire my client, for reasons my client and I believe are discriminatory. In order to secure some useful information, I want to hire an investigator to pose as a prospective employee, so that she can be interviewed by the company's Human Resources director (who I believe discriminated against my client). Can I do this?

A. No. Disciplinary Rule 1-102 of the New York Code of Professional Responsibility provides that a lawyer 'shall not ' [e]ngage in conduct involving dishonesty, fraud, deceit or misrepresentation.' And, not surprisingly, under another provision of DR 1-102, a lawyer may not circumvent the Disciplinary Rules through 'the actions of another.'

On its face, hiring an investigator to pose as someone she is not would appear to violate this Rule. While there are no New York decisions exactly on point, authority from other jurisdictions is mixed. For example, In re Complaint as to the Conduct of Daniel J. Gatti, 2000 Ore. LEXIS 647 (Sup. Ct. Or. 2000) and In re Ositis, 333 Ore. 366 (2002), both imposed discipline upon attorneys in connection with their use of similar deceit in an investigatory context. (Oregon has since adopted a new analog to DR 1-102, which expressly provides that it is not a violation for an attorney to participate in 'covert activity in the investigation of civil or criminal law or constitutions rights.') The court in Midwest Motor Sports, Inc. v. Arctic Cat Sales, Inc., 144 F. Supp. 2d 1147 (D.S.D. 2001) found it improper for an attorney to use an investigator to pose as a customer to elicit information from a salesperson of an opposing party. And in The Matter of Mark Pautler, 47 P. 3d 1175 (Colo. 2002), the court upheld a disciplinary sanction against a deputy district attorney who misrepresented his identify as a public defender in a successful attempt to have a murderer surrender to authorities.

On the other hand, the State Bar of Arizona, in Opinion No. 99-11, condoned a lawyer's use of a discrimination tester who misrepresented his identity and purpose in contacting someone who was the subject of an investigation. And the court in Apple Corps. Ltd. v. International Collectors Co., 15 F. Supp. 2d 456 (D.N.J. 1999) (in a non-employment law context) observed that 'misrepresentations solely as to identity or purpose and solely for evidence gathering purposes' are not prohibited by these ethical rules. Caution should be exercised, however, because as bold as this latter observation is, it is hard to imagine that any court or disciplinary authority would tolerate an attorney hiring a third party to pose, for example, as a friend or relative of an adverse party so that he could get close to that adverse party's witnesses in order to secure useful information. (See Kansas Bar Association Opinion 94-15 (1995).

So, where does this leave you? A few jurisdictions do seem to grant special treatment to the use of 'discriminator testers,' based on a belief that they serve a greater social good. New York has yet to join those ranks. Beyond that, a few other jurisdictions seem willing to permit 'minor' misrepresentations (as to identify and purpose), at least in cases where the information being sought is otherwise 'public' information (eg, sending an investigator into a retail store posing as a customer to learn what the store's salespeople generally say to customers about a particular product). In some jurisdictions, however, even this conduct may be impermissible, and certainly anything beyond this level of 'misrepresentation,' leading to more than generally available information, should raise serious concerns.

John Gaal is a partner in the Syracuse office of Bond, Schoeneck & King LLP, and is a member of the Editorial Board of this publication. Send your ethics questions to him at [email protected].

Q. I am in the midst of some contentious litigation involving a company's refusal to hire my client, for reasons my client and I believe are discriminatory. In order to secure some useful information, I want to hire an investigator to pose as a prospective employee, so that she can be interviewed by the company's Human Resources director (who I believe discriminated against my client). Can I do this?

A. No. Disciplinary Rule 1-102 of the New York Code of Professional Responsibility provides that a lawyer 'shall not ' [e]ngage in conduct involving dishonesty, fraud, deceit or misrepresentation.' And, not surprisingly, under another provision of DR 1-102, a lawyer may not circumvent the Disciplinary Rules through 'the actions of another.'

On its face, hiring an investigator to pose as someone she is not would appear to violate this Rule. While there are no New York decisions exactly on point, authority from other jurisdictions is mixed. For example, In re Complaint as to the Conduct of Daniel J. Gatti, 2000 Ore. LEXIS 647 (Sup. Ct. Or. 2000) and In re Ositis, 333 Ore. 366 (2002), both imposed discipline upon attorneys in connection with their use of similar deceit in an investigatory context. (Oregon has since adopted a new analog to DR 1-102, which expressly provides that it is not a violation for an attorney to participate in 'covert activity in the investigation of civil or criminal law or constitutions rights.') The court in Midwest Motor Sports, Inc. v. Arctic Cat Sales, Inc. , 144 F. Supp. 2d 1147 (D.S.D. 2001) found it improper for an attorney to use an investigator to pose as a customer to elicit information from a salesperson of an opposing party. And in The Matter of Mark Pautler, 47 P. 3d 1175 (Colo. 2002), the court upheld a disciplinary sanction against a deputy district attorney who misrepresented his identify as a public defender in a successful attempt to have a murderer surrender to authorities.

On the other hand, the State Bar of Arizona, in Opinion No. 99-11, condoned a lawyer's use of a discrimination tester who misrepresented his identity and purpose in contacting someone who was the subject of an investigation. And the court in Apple Corps. Ltd. v. International Collectors Co., 15 F. Supp. 2d 456 (D.N.J. 1999) (in a non-employment law context) observed that 'misrepresentations solely as to identity or purpose and solely for evidence gathering purposes' are not prohibited by these ethical rules. Caution should be exercised, however, because as bold as this latter observation is, it is hard to imagine that any court or disciplinary authority would tolerate an attorney hiring a third party to pose, for example, as a friend or relative of an adverse party so that he could get close to that adverse party's witnesses in order to secure useful information. (See Kansas Bar Association Opinion 94-15 (1995).

So, where does this leave you? A few jurisdictions do seem to grant special treatment to the use of 'discriminator testers,' based on a belief that they serve a greater social good. New York has yet to join those ranks. Beyond that, a few other jurisdictions seem willing to permit 'minor' misrepresentations (as to identify and purpose), at least in cases where the information being sought is otherwise 'public' information (eg, sending an investigator into a retail store posing as a customer to learn what the store's salespeople generally say to customers about a particular product). In some jurisdictions, however, even this conduct may be impermissible, and certainly anything beyond this level of 'misrepresentation,' leading to more than generally available information, should raise serious concerns.

John Gaal is a partner in the Syracuse office of Bond, Schoeneck & King LLP, and is a member of the Editorial Board of this publication. Send your ethics questions to him at [email protected].