Wisconsin Lawyer
Vol. 79, No. 12, December 2006

Advising on Lawful Investigations

by Dean R. Dietrich

Question

Recent news reports have accused lawyers of engaging in wrongdoing by hiring investigators who have used false pretenses to obtain information for the lawyer. I also heard that the proposed new Rules of Professional Conduct in Wisconsin address this issue. What do the new Rules say?

Answer

You are referring to recent articles concerning Hewlett-Packard and steps taken by counsel for that corporation to oversee an internal investigation to determine how information was leaked from its board of directors meetings to the news media. This activity has been called "pretexting" by the news media and involves the corporate attorney hiring private investigators who use false pretenses to obtain information about members of the board of directors and others.

This type of conduct, including the use of investigators to gain access to information by false pretenses, is generally seen as contrary to SCR 20:4.1 of the Rules of Professional Conduct. The current version of SCR 20:4.1 provides as follows:

"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; or

"(b) fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 1.6."

It is widely recognized that under Rule 20:4.1, a lawyer may not, himself or herself or through other people, engage in deceptive practices to gain information during the course of representation. This would constitute the failure to disclose a material fact if the lawyer (or the lawyer's agent) uses false information to obtain information from other people. While few complaints have been brought under this rule, it is clear that the use of other people to gather information by using false pretenses or false information would be considered a violation of the rule.

The question of whether a lawyer may advise others on how to conduct an investigation that may include the use of false information, such as an undercover criminal investigation, was raised before the Wisconsin Supreme Court as it reviewed the Rules of Professional Conduct over the past 12 months. The Ethics 2000 Commission appointed by the Wisconsin Supreme Court recommended a change to SCR 20:4.1 to allow prosecutors to give legal advice to undercover officers so that they may legally conduct undercover criminal investigations. After a great deal of debate about this proposed change, the Wisconsin Supreme Court adopted a new provision to SCR 20:4.1, which is found in SCR 20:4.1(b). This provision provides as follows:

"(b) Notwithstanding paragraph (a) and Rules 5.3(c)(1) and 8.4, a lawyer may advise or supervise others with respect to lawful investigative activities."

The supreme court also added language to the Comment to the SCR 20:4.1 to give better guidance regarding the concept of a lawful investigative activity. The court added the following to the Comment:

"Wisconsin Committee Comment:

"Paragraph (b) has no counterpart in the Model Rule. As a general matter, a lawyer may advise a client concerning whether proposed conduct is lawful. See Rule 1.2(d). This is allowed even in circumstances in which the conduct involves some form of deception, for example the use of testers to investigate unlawful discrimination or the use of undercover detectives to investigate theft in the workplace. When the lawyer personally participates in the deception, however, serious questions arise. See Rule 8.4(c). Paragraph (b) recognizes that, where the law expressly permits it, lawyers may have limited involvement in certain investigative activities involving deception.

"Lawful investigative activity may involve a lawyer as an advisor or supervisor only when the lawyer in good faith believes there is a reasonable possibility that unlawful activity has taken place, is taking place or will take place in the foreseeable future."

Under this provision, the supreme court recognizes that lawyers may be called on to give legal advice on the procedures that should be followed to conduct a lawful investigation. Examples would include an undercover criminal investigation or the use of testers to determine whether discriminatory conduct has taken place.

New subsection (b) is unique and is not found in the Model Rules of Professional Conduct. Very few states have adopted a rule of this type to address the right of lawyers to give legal advice in instances of lawful investigative activities. The Rule does not, however, allow lawyers to directly participate in investigative activities that would involve use of false pretenses or that are based on false information. The subsection (b) exception to the requirements of SCR 20:4.1 would apply only to circumstances in which a lawyer is giving legal advice on how to conduct a lawful investigation. The extent and scope of lawful investigations are yet to be determined, but lawyers have been given some protection to allow the provision of legal advice to persons participating in lawful investigations.

The court has indicated that the new Rules of Professional Conduct will become effective July 1, 2007. The State Bar of Wisconsin will be conducting educational programs over the next six months to explain the rule changes to Wisconsin lawyers.

Wisconsin Lawyer