He who fights with monsters might take care lest he thereby become a monster. And if you gaze for long into an abyss, the abyss gazes also into you. Nietzsche, Beyond Good and Evil, Aphorism 146
When the President does it, that means that it is not illegal. Richard M. Nixon
Consider the following facts:
A State Bar discipline prosecutor assigned to an investigation of attorney misconduct telephones the office of a target of the investigation. Along with another discipline prosecutor, they represent themselves to be a married couple from another state who received a direct mail solicitation from the lawyer and that they are interested in employing the lawyer. They speak to a non-lawyer who identifies herself as a member of lawyer’s staff. She makes a number of statements to the State Bar prosecutors that are later alleged to constituted the unauthorized practice of law.
Consider the following black letter law regarding the duties of an attorney:
6068. It is the duty of an attorney to do all of the following:… (d) To employ, for the purpose of maintaining the causes confided to him or her those means only as are consistent with truth…
6106. The commission of any act involving moral turpitude, dishonesty or corruption, whether the act is committed in the course of his relations as an attorney or otherwise, and whether the act is a felony or misdemeanor or not, constitutes a cause for disbarment or suspension.
Finally, consider that State Bar discipline prosecutors are charged with upholding these very laws and routinely prosecute lawyers for violating them.
Similar fact patterns have come to known be known as “pretexting” or “dissemblence”. One ethics opinion quotes Black’s law dictionary as defining “dissemblance” as “To give a false impression about something; to cover up something by deception (to dissemble the facts.” NYCLA Committee on Professional Ethics formal opinion no. 737. This is, without a doubt, dishonesty. Some courts have upheld the use of “dissemblance” by investigators working under the direction of attorneys; for instance, the decision in Apple Corps Limited v. International Collectors Society 15 F. Supp.2d 456, 475 (D.N.J.) which involved private attorneys attempting to enforce intellectual property rights. They hired investigators who posed as consumers and telephoned direct marketers to investigate their sales activities. And the use of undercover agents who dissemble in the investigation of criminal activity has long been recognized (see e.g. United States v. Parker 165 F. Supp.2d 431 (W.D.N.Y.) The underlying rationale is that dissemblance is necessary to investigate some types of wrongdoing that cannot otherwise be penetrated. Limited dishonesty can be tolerated to fight certain monsters.
The use of dissemblance by attorneys themselves, as opposed to non-attorney investigators working under the direction of attorneys, has been met with different results. In Re Paulter 47 P.3d 1175 (Colo. 2001) involved a deputy district attorney who told a criminal suspect holding a hostage that he was a public defender to induce him to surrender. The Colorado Supreme Court, noting that there was no exception to Colorado Rule of Prof. Conduct 8.4(c) (“It is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit or misrepresentation” and imposed discipline of probation with a stayed suspension of three months. The Colorado Supreme Court upheld the disciplinary board’s finding that a secondary motive behind Pautler actions was to keep the suspect talking about his crimes without the benefit of requested legal counsel.
They said this about what honesty means to the profession:
The jokes, cynicism, and falling public confidence related to lawyers and the legal system may signal that we are not living up to our obligation; but, they certainly do not signal that the obligation itself has eroded. For example, the profession itself is engaging in a nation-wide project designed to emphasize that “truthfulness, honesty and candor are the core of the core values of the legal profession.” Lawyers themselves are recognizing that the public perception that lawyers twist words to meet their own goals and pay little attention to the truth, strikes at the very heart of the profession – as well as at the heart of the system of justice. Lawyers serve our system of justice, and if lawyers are dishonest, then there is a perception that the system, too, must be dishonest. Certainly, the reality of such behavior must be abjured so that the perception of it may diminish.
In Re Gatti 8 P.3d 966 (Ore.2000) involved a lawyer who misrepresented himself to be chiropractor in telephone conversations while investigating fraud on behalf of several clients. The Oregon Supreme Court applied Oregon’s disciplinary rule DR 102(A)(3), almost identical to ABA Model Rule 8.4(c), and found that there was no exception to the rule. The United States Attorney’s office for the District of Oregon appeared as amicus and, along with the Oregon Attorney General, argued that the court should recognize an exception to the honesty rule for government lawyers. Amici for a number of consumer protection organizations also appeared an argued for an judicially created exception for their dissembling activities. The Court declined to adopt those exceptions, finding that the rule requiring honesty is applicable to all lawyers and imposed a public reprimand.
Following Gatti, Oregon amended is disciplinary rules, adopting a version of the Model Rules with this exception:
(b) Notwithstanding paragraphs (a)(1), (3) and (4) and Rule 3.3(a)(1), it shall not be professional misconduct for a lawyer to advise clients or others about or to supervise lawful covert activity in the investigation of violations of civil or criminal law or constitutional rights, provided the lawyer’s conduct is otherwise in compliance with these Rules of Professional Conduct. “Covert activity,” as used in this rule, means an effort to obtain information on unlawful activity through the use of misrepresentations or other subterfuge. “Covert activity” may be commenced by a lawyer or 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.
The exception is limited to supervising “lawful covert activity”. Lawyers in Oregon are still directly bound by a duty of honesty.
There is no exception to the rules in California imposing on lawyers the duties to be honest in personal and professional life and to use only truthful means in the maintaining the causes confided in them.
Despite this, the position of the State Bar is that State Bar counsel are entitled to employ dissemblance (or in plan speak, lie) about their identities because the State Bar as an arm of the Supreme Court is involved regulatory work that is in nature of law enforcement and its attorneys are government attorneys. The Bar sees no distinction between misrepresentations made by investigators and misrepresentations made directly by bar counsel themselves. Like the US Attorney in Oregon, the State Bar sees an implied exception to the honesty rule simply because they work for the government.
This despite a litany of discipline cases that speak of the importance of honesty as cornerstone value of the legal profession and the lack of any exception to the duty of honesty. “The conduct of petitioner violates the fundamental rule of ethics—that of common honesty—without which the profession is worse than valueless in the place it holds in the administration of justice. Tatlow v. State Bar of Calfornia. (1936) 5 Cal.2d 520, 524. “Subdivision (d) of section 6068 obligates an attorney to “employ, for the purpose of maintaining the causes confided to him, such means only as are consistent with truth.” The statute requires an attorney to refrain from misleading and deceptive acts without qualification. [citation]. It does not admit of any exceptions.” Rodgers v. State Bar (1989) 48 Cal.3d 300, 315. “The State Bar Act makes any act of dishonesty or misleading of a court to be disciplinable.” In the Matter of Lais (Review Dept. 2000) 4 Cal. State Bar Ct. Rptr. 112, 122. “The commission of any act of dishonesty constitutes a violation of section 6106.” In the Matter of Farrell (Review Dept. 1991) 1 Cal. State Bar Ct. Rptr. 490, 497.
The State Bar it seems has lost sight of the truth eloquently stated by Colorado Supreme Court: “if lawyers are dishonest, then there is a perception that the system, too, is dishonest.” This despite the fact that it is exactly that truth that its Office of Chief Trial Counsel purports to serve. Every California lawyer should now take notice of the the possibility that the next client that they talk to might not be a client at all. Once unwritten and undefined exceptions to a fundamental value of the legal profession are condoned, the danger is that they will naturally expand. Anyone who still takes the fantasy that the legal profession is still a self-governing body should take heed: this marks the maturation of State Bar as an aggressive government law enforcement agency, a body more concerned with protecting consumers than protecting the values of the legal profession.
Some will naturally applaud this as long overdue and inevitable.
Others will wonder what new abyss this will lead us to.