NYCLA Committee on Professional Ethics Formal Opinion No. 737

Brief Summary
The NYCLA ethics committee concluded that although the New York Code of Professional Responsibility generally makes it unethical for a non-government lawyer to use or supervise an investigator who dissembles during an investigation, under certain very narrow exceptions, such dissemblance as to identity and purpose is permitted when investigators are acting as “testers” to gather evidence in civil rights or intellectual property rights cases.

Complete Summary
The ethics committee addressed under what circumstances it may be ethically permissible for a non-government lawyer to use the services of and supervise an investigator, if the lawyer knows dissemblance will be used by the investigator. Id. at 1. The committee distinguished as a matter of degree and purpose the definition of “dissemble,” which was defined in this opinion as misstatements by investigators as to identity and purpose used solely for gathering evidence, from behavior involving “dishonesty, fraud, deceit or misrepresentation,” which is forbidden by DR 1-102(a)(4). The committee noted that this type of investigation is commonly associated with discrimination and trademark/copyright testers posing as consumers, tenants, home buyers or job seekers while engaged in a transaction that is not unlawful. The committee also narrowed its opinion to situations in which the investigator is the lawyers’ agent as opposed to the client’s agent. Id. at 2.

The committee’s Opinion includes a useful survey of the available case law, professional rules of conduct, and commentary. The Opinion cites rule-based exceptions for this type of dissemblance from Oregon, Alabama and Florida, the latter two of which are limited to government lawyers. The committee also noted that the ABA, in its opinion on surreptitious recording, expressly did not address the issue of when investigative practices involving misrepresentations of identity and purpose may be ethical. See ABA 01-422. Id. at 3.

As there was no rule-based exception in New York, the committee relied on case law and a principles based determination. The committed reviewed federal district court opinions that addressed the use of the exclusionary rule as it related to evidence obtained through investigative dissemblance. See Gidatex v. Campaniello Imports, Ltd., 82 F. Supp.2d 119 (S.D.N.Y. 1999) and United States of America v. Parker, 165 F.Supp. 2d 431 (W.D.N.Y. 2001). Although not expressed in their holdings, the opinions in Gidatex and Parker did appear to judicially sanction as ethically permissible the use of dissemblance in investigations. NYCLA No. 737 at 4. In addition, the U.S. Supreme Court has upheld the standing of “testers” in racial discrimination cases. See Havens Realty Corp. v. Coleman, 455 U.S.363, 373 (1982).

Despite the lack of nationwide consensus, the committee established the following rule, which it believes “is most consistent with the overall purposes of the Disciplinary Rules and conforms to professional norms and societal expectations”:

“[N]on-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, and (iii) the lawyers’ 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.” NYCLA No. 737 at 5-6.

Significance of Case
NYCLA used this opinion to accept and recognize as ethically permissible the use of investigators who would pose as “test” consumers such as tenants, job applicants, home buyers or customers in cases involving racial discrimination, as well as violations of intellectual property rights. However, the court warned lawyers who supervise these investigators to interpret this exception very narrowly.

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