A private practice lawyer ethically may direct a private investigator or tester to misrepresent their identity or purpose in contacting someone who is the subject of investigation, only if the misrepresentations are for the purpose of gathering facts before filing suit. [ER 4.1, 5.3(c), 8.4(c)]
An attorney represents a person who has been denied admission to a post secondary school because of a disability. In any impending litigation the school may contend that the client would have been denied admission due to lack of qualifications, that is, the client would have been denied admission even if the client did not have a disability. The school may argue that samples of the client's work that would be necessary for admission are below the school's eligibility standards.
To rebut the expected argument from the post secondary school, a private investigator would be retained to take the client's work to the school's admissions office and ask whether the work meets the eligibility standards. The investigator would represent that the work was done by the investigator, not the client. The investigator would be posing as someone interested in attending the school. However, the investigator would have no interest in actually attending the school.
Whether an attorney ethically may hire a private investigator to pose as someone interested in being admitted to a post secondary school using the client's actual work as a sample for admission, in order to gather facts for a civil suit.
Relevant Ethical Rules
ER 1.1 Competence
A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.
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ER 4.1 Truthfulness in Statements to Others
In the course of representing a client a lawyer shall not knowingly:
(a) make a false statement of a material fact or law to a third person;
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ER 5.3 Responsibilities Regarding Nonlawyer Assistants
With respect to a nonlawyer employed or retained by or associated with a
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(c) a lawyer shall be responsible for conduct of such a person that would be a violation of the rules of professional conduct if engaged in by a lawyer if:
(1) the lawyer orders or, with the knowledge of the specific conduct, ratifies
the conduct involved; or
(2) the lawyer is a partner in the law firm in which the person is employed,
or has direct supervisory authority over the person, and knows of the conduct at a
time when its consequences can be avoided or mitigated but fails to take remedial
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ER 8.4 Misconduct
It is professional misconduct for a lawyer to:
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(c) engage in conduct involving dishonesty, fraud, deceit or
The inquiring lawyer proposes sending a "tester" to a school to validate a claim of discrimination. Testers are used to detect and collect evidence of discriminatory practices in employment, housing, public accommodations, and access to financing.
David B. Isbell & Lucantonio N. Salvi, Ethical Responsibility of Lawyers for Deception by Undercover Investigators and Discrimination Testers: An Analysis of the Provisions Prohibiting Misrepresentation Under the Model Rules of Professional Conduct,
8 Georgetown Journal of Legal Ethics 791 (1995).
Testers gather evidence in civil discrimination cases, and are ordinarily used by nonprofit organizations or governmental agencies that enforce discrimination laws. Id. at 65. Havens Realty Corp. v. Coleman, 455 U.S. 363, 102 S. Ct. 1114, 71 L. Ed.2d 214 (1982). Indeed, claims of discrimination due to disability, especially with the advent of the Americans with Disabilities Act, fall within the purposes for use of a "tester" noted above. In the situation presented the tester is an investigator for the attorney. While in many circumstances there might be a difference between a "tester" and an "investigator", in the present case the distinction is without substance.
Courts have recognized the use of "testers" and have gone so far as approving their use. Richardson v. Howard, 712 F.2d 319 (7th Cir. 1983) involved a claim of race discrimination. In Chicago Ridge, Illinois an aggrieved individual sought assistance from the Leadership Council for Metropolitan Open Communities (the "Leadership Council"), a private organization, because an apartment complex would not rent her an apartment. The Leadership Council decided to investigate by sending a tester in to attempt to rent an apartment, the tester was successful in renting the apartment, while the complainant was not.
In discussing the testimony of a "professional tester", the court stated:
This court and others have repeatedly approved and sanctioned
the role of "testers" in racial discrimination cases. (citations
712 F.2d at 321.
The court noted that frequently it is difficult to develop evidence of discrimination without the use of testers. There is, therefore, no doubt that the employment of testers is in itself a legal way of obtaining evidence of discrimination.
Additionally, criminal investigations quite frequently employ an "undercover officer". From uncovering narcotics to stolen property, an officer posing as someone else is an accepted way of conducting a criminal investigation, if the facts warrant. "Both petitioner and Government recognize the necessity for some undercover police activity and both concede the particular circumstances of each case govern the admissibility of evidence obtained by stratagem or deception." Lewis v. United States, 385 U.S. 206, 87 S. Ct. 424, 17 L. Ed.2d 312 (1996). See State v. Poland, 132 Ariz. 269, 277, 645 P.2d 784 (1982).
The threshold question is, can an attorney who is subject to the Rules of Professional Conduct send in a tester knowing that the tester will lie to the person whose activities are being questioned? By doing so, the attorney may be fulfilling the responsibilities set forth in ER 1.1, however, is that attorney violating any other ethical rule, such as
ERs 4.1(a) or 8.4(c), which prohibit lawyers from engaging in deceptive conduct, misrepresentation, and false statements? Again, reference is made to Richardson:
It is frequently difficult to develop proof in discrimination
cases and the evidence provided by testers is frequently valuable,
if not indispensable. It is surely regrettable that testers must
mislead commercial landlords and homeowners as to their real
intentions to rent or buy housing. Nonetheless, we have long
recognized that this requirement of deception was a relatively
small price to pay to defeat racial discrimination.
712 F.2d at 321.
Simply because the use of testers is legal and recognized, however, does not per se translate into stamping the conduct as ethical within the rules, for the end does not universally justify the means. In re Friedman, 392 N.E.2d 1333 ( Ill. 1979) poses an example. In Friedman, an assistant state's attorney was informed by a police officer the defense attorney in a DUI case offered a bribe in exchange for giving false testimony.
The state's attorney instructed the officer to lie to the court in order to allow the defense attorney to carry his plan to fruition. Friedman was charged with violating four Disciplinary Rules; creation of false evidence, secreting of a witness, knowing use of evidence, and conduct involving dishonesty, fraud, deceit, or misrepresentation.
Id. at 1333.
The hearing board of the disciplinary commission found that the attorney did not violate the ethical rules and recommended the complaint be dismissed. The review board split in favor of discipline and the case went to the Illinois Supreme Court. The court held that the attorney violated the ethical rules but, considering the circumstance, should not be disciplined. Id. at 1335. In In re Malone, 105 A.D.2d 455, 480 N.Y.S.2d 603 (1984) the Inspector General of the New York State Department of Correctional Services, a lawyer, while investigating the beating of an inmate, was told by a corrections officer that he had seen several other officers beat the inmate. In order to protect the officer from retaliation for coming forward, Malone told the officer to testify falsely during one part of the investigation. The New York Supreme Court Appellate Division held that Malone violated the Code of Professional Conduct, prohibiting a lawyer from engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation, but the court found that Malone "acted out of laudable motive" and imposed the sanction of censure. Id. at 607. It is noted, however, that both In re Friedman and In re Malone involved false testimony presented to a court. Such is never permissible.
Ariz. Op. 95-03, discusses ER 8.4(c) in the context of secret recordings of telephone conversations:
Rule 8.4 prohibits conduct involving dishonesty, fraud, deceit
or misrepresentation. These words are not precisely defined in
the rules and potentially cover a wide array of conduct but they nonetheless are elements of Arizona's modern ethical rules for a
The Committee further noted that a secret tape recording of a telephone conversation involves an "element of deceit and misrepresentation", and is prohibited except in four narrow exceptions. Id. at 3-4. The Committee also found that secret recording of a witness by a defense attorney is proper to protect against perjury and to obtain impeachment material should the witness testify differently at trial.
Likewise, in the present situation, the use of "testers" who employ some deceit is proper under the ethical rules to protect society from discrimination based upon disability, race, age, national origin, and gender.
Isbell and Salvi point out four legitimate policy considerations for using undercover testers and investigators: 1) enforcement of the law is a desirable goal; 2) the use of investigators and testers is an indispensable means of detecting and proving violations which might otherwise escape proof; 3) the use of testers is legal and has been approved by the courts; and finally, 4) undercover investigators and testers have been traditionally and widely employed by both the public and private attorneys. Id. at 802-803.
It is instructive to look at the preamble to the Rules of Professional Conduct. In defining the scope of Arizona's Ethical Rules, the preamble to the rules states:
The Rules of Professional Conduct are the rules of reason. They
should be interpreted with reference to the purposes of legal
representation and the law itself.
The rules themselves should be harmonized in order to prevent unnecessary conflict and should not be used as a shield to hide discrimination. In such cases, the lawyer's essential purpose is to evaluate the facts against the legal standards. It is many times essential for a lawyer to use "testers" in order to meet the attorney's responsibilities under the ethical rules.
While recognizing the tension between the purposes of the conduct and rules, Isbell and Salvi come to the conclusion that when a lawyer directs a tester or investigator to make misrepresentations solely about their identity or purpose in contacting the person or entity who is the subject of investigation, and when the misrepresentations are made only for the purposes of gathering facts before filing a lawsuit by a lawyer who supervises or directs the tester's activities, the lawyer's conduct does not violate any provision of the model rules. Id. at 829. It is an opinion with which the Committee must agree. The ethical rules are not meant to prohibit the legitimate conduct which is contemplated by the hypothetical presented.
It would be inconsistent with the intent of the rules and the state of the law to interpret the ethical rules to opine that misrepresentations by the tester and the supervising attorney are prohibited by these rules.