Are Attorneys acting Unethically When Their Non-Attorney Investigators Misstate Their Identity (Dissemblance) to Obtain Evidence?

Are Attorneys acting Unethically When Their Non-Attorney Investigators Misstate Their Identity (Dissemblance) to Obtain Evidence?

Non-government attorneys may ethically supervise non-attorney investigators employing a limited amount of dissemblance in some strictly limited circumstances where: (i) either (a) the investigation is of a violation of civil rights or intellectual property rights and the lawyer believes in good faith that such violation is taking place or will take place imminently or (b) the dissemblance is expressly authorized by law; and (ii) the evidence sought is not reasonably available through other lawful means; [FN19] and (iii) the lawyer's conduct and the investigators' conduct that the lawyer is supervising do not otherwise violate the Code (including, but not limited to, DR 7-104, the “no-contact” rule) or applicable law; and (iv) the dissemblance does not unlawfully or unethically violate the rights of third parties. Moreover, the investigator must be instructed not to elicit information protected by the attorney-client privilege.


Importantly, dissemblance is distinguished here from dishonesty, fraud, misrepresentation, and deceit by the degree and purpose of dissemblance. For purposes of this opinion, dissemblance refers to misstatements as to identity and purpose made solely for gathering evidence. It is commonly associated with discrimination and trademark/copyright testers and undercover investigators and includes, but is not limited to, posing as consumers, tenants, home buyers or job seekers while negotiating or engaging in a transaction that is not by itself unlawful. Dissemblance ends where misrepresentations or uncorrected false impressions rise to the level of fraud or perjury, communications with represented and unrepresented persons in violation of the Code, see DR 7-104, or in evidence-gathering conduct that unlawfully violates the rights of third parties.

New York County Lawyers' Association Committee on Professional Ethics, Formal Opinion Number 737 (May 23, 2007) (2007 WL 7281470).

http://www.nycla.org/siteFiles/Publications/Publications519_0.pdf