John Gaal's Ethics Corner

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.