LEGAL ETHICS OPINION 1845                                        USE OF COVERT TACTICS BY THE VIRGINIA STATE BAR IN UNAUTHORIZED PRACTICE OF LAW INVESTIGATIONS

 

In this hypothetical, “A” is a paralegal who worked for “Lawyer B” for twenty years until “Lawyer B’s” death.  Lawyer B, a solo practitioner, limits his practice to trust and estate work.  Through the years, under Lawyer B’s supervision, “A” became quite proficient in preparing wills and powers of attorney for clients.  In the process of assisting in the closing of the practice, “A” collected and took with her forms that “Lawyer B” had used for preparing wills, advanced medical directives and powers of attorney (“POAs”).   “Lawyer B” practiced in a relatively small community and both “Lawyer B” and “A” were known and highly regarded.  “A” did not seek new employment after “Lawyer B’s” practice was closed.  Instead, over the ensuing years “A,” through word of mouth, offered legal services to people she knew and to others who were referred to her, by providing assistance in preparing wills, POAs, and advanced medical directives—using the forms she had kept from “Lawyer B’s” practice.  “A” did not, however, advertise or publicly hold herself out as providing such services. 

 

Recently, a circuit court clerk filed an unauthorized practice of law complaint with the Virginia State Bar’s Standing Committee on Unauthorized Practice of Law (“UPL Committee”) against “A” alleging that “A” has made a business of preparing wills and POAs and these wills are now turning up years later as testators die and as wills are admitted to probate.  Certain problems are being discovered in how the documents were drafted and questions asked about the circumstances under which they were prepared.  The clerk’s information is based almost exclusively on hearsay and documents the clerk has seen admitted to probate. 

 

Proving the allegations in the complaint is extremely difficult.  No one involved, either those presenting the wills or attorneys or court personnel reviewing the wills, has ever had any direct contact with “A” or was present when she drafted the documents, which are now years old.  “A” has not responded to the complaint[1] and no one can/will provide any information as to whether “A” is still engaged in this activity or substantiate what, if anything, she has done in the past. Also, no source exists to contradict the circumstantial evidence that “A” indeed engaged in what is alleged.  The evidence on the face of the complaint is insufficient for the UPL Committee to make a finding of unauthorized practice or to make a referral to the Office of the Attorney General or a Commonwealth’s Attorney.  Moreover, because of the absence of witnesses who can testify or produce substantive evidence,[2] there is no way that the UPL Committee can meet its burden of proof in an enforcement proceeding against “A.”[3]

 

Furthermore, the UPL Committee has reason to believe that “A” continues to provide these services to the public to their detriment.  To obtain evidence that “A” is providing legal services to the public, Ethics Counsel and/or Assistant Ethics Counsel who staff the UPL Committee (“staff counsel”) need to direct a Virginia State Bar (“VSB”) investigator or some other willing outside volunteer to contact “A” under the pretext of wanting a will and/or POA prepared, collect and pay for these services, and report back the results.  In effect, staff counsel and the investigator propose to employ an “undercover”/ “sting” operation to catch “A” engaging in unlawful or criminal activity. 

 

QUESTIONS REGARDING ETHICAL CONDUCT

 

1.  Is it ethical for staff to direct a bar investigator or other outside investigator/volunteer to engage in covert investigative techniques in the investigation of the unauthorized practice of law described in this hypothetical?

 

2.  Is it ethical for the staff counsel to direct a bar investigator or other outside investigator/volunteer to engage in covert investigative techniques in the investigation of the unauthorized practice of law in any case in which similar circumstances of lack of witness cooperation, lack of substantive evidence and significant harm to “clients” exist and no other reasonable alternative is available for obtaining information against the person engaging in unauthorized practice?

 

APPLICABLE RULES & OPINIONS

 

            The appropriate and controlling rules relative to this hypothetical are Rules 5.3(c)(1), which outlines a lawyer’s responsibilities regarding non-lawyer assistants, Rule 8.4 (a), which prohibits a lawyer from violating or attempting to violate a rule of conduct through the actions of another, and Rule 8.4(c), which deals with lawyer misconduct that reflects adversely on the lawyer’s fitness to practice law. Also pertinent to the Committee’s analysis are LEO 1738 (attorney participation in electronic recording without consent of party being recorded), and Supreme Court LEO 1765 (government attorney performing undercover work without violating 8.4).

 

ANALYSIS OF THE QUESTIONS PRESENTED

 

            This opinion addresses the ethical propriety of staff counsel to the UPL Committee supervising an undercover investigation to determine whether someone is engaging in the unauthorized practice of law. The lawyers are not conducting the covert investigation but have directed a lay staff investigator, regularly employed by the VSB, to perform the covert investigation.  The tactics or techniques used by the investigator would involve some form of deception, i.e., misrepresentation of identity or purpose, in order to catch the suspect engaging in conduct that is unlawful or criminal.

 

In answering the first question, this Committee believes, based upon the facts presented in the hypothetical, that the use of an undercover or “sting” operation by a lay investigator, under the direction of Ethics Counsel and Assistant Ethics Counsel, does not violate the Rules of Professional Conduct.

 

            Rule 8.4 (c) of the Rules of Professional Conduct states in pertinent part that “it is professional misconduct for a lawyer . . . to engage in conduct involving dishonesty, fraud, deceit or misrepresentation which reflects adversely on the lawyer’s fitness to practice law. . . .” (emphasis added).[4]  Rule 8.4 (a) prohibits a lawyer from violating or attempting to violate a rule of conduct through the actions of another, i.e., a lay investigator.

 

            Rule 5.3 (c)(1) also applies to the Committee’s analysis,  holding that a lawyer is ethically responsible for a non-lawyer’s conduct  that violates  the Rules of Professional Conduct if the lawyer orders or, with the knowledge of the specific conduct, ratifies it.  Comment [1] to Rule 5.3 notes: “[a]t the same time, however, the Rule is not intended to preclude traditionally permissible activity such as misrepresentation by a non-lawyer of one’s role in a law enforcement investigation or a housing discrimination “test.”

 

            The Committee observes that one who engages in the unauthorized practice of law is committing a criminal act.[5]  Through the State Bar Act of 1938, the General Assembly created the VSB as the administrative agency charged with investigating and reporting violations of rules and regulations adopted by the Supreme Court of Virginia.[6]  The Unauthorized Practice Rules (“UPRs”) are adopted by the Supreme Court of Virginia and published in Part 6, Section I of the Rules of Court.  Staff counsel are required by the Rules of Court to investigate written complaints of the unauthorized practice of law and report to the Committee the status of the investigation within 180 days from when the complaint is filed. Upon review of all the evidence presented, the UPL Committee then determines the appropriate disposition of each complaint.[7]

 

            In short, staff counsel are charged by law with the duty to investigate conduct that is unlawful or criminal and the UPL Committee reviews and evaluates the evidence gathered in that investigation and makes a determination as to what further action to take or not against the respondent. Since, in this hypothetical, “A” has made it known by word of mouth that she is available to prepare legal instruments and is accepting legal work by referral, the only viable means to discover “A’s” criminal or illegal activity is to have an investigator pose as a prospective client interested in obtaining a legal instrument.

 

            It is generally known and very well accepted that law enforcement authorities, including government lawyers, are authorized to conduct or supervise undercover operations using deception to gather information about criminal conduct.[8]  This Committee has opined that lawyers involved in undercover activity or who supervise such activity are not acting unethically despite the prohibition against conduct involving fraud, dishonesty, deceit or misrepresentation reflecting adversely on the lawyer’s fitness to practice law.[9] 

 

The Committee has also stated that although undercover investigations involve some elements of misrepresentation and deceit, the conduct does not reflect adversely on the fitness or character of the lawyer directing or supervising a lawful criminal investigation.[10]   The Supreme Court of Virginia has specifically approved a legal ethics opinion that recognizes a “law enforcement” exception to Rule 8.4 (c).[11]  This “law enforcement exception” includes civil investigations using “testors” conducted under the supervision of government lawyers charged with investigation and prosecuting cases of housing discrimination.[12]  This Committee sees no principled distinction to be drawn between these types of investigations, in which undercover operations have been approved, and the UPL investigation presented in this hypothetical in which lawyers and agents of a governmental agency are charged by law with the investigation of conduct that is criminal or illegal.

 

Therefore, in answer to the second question, it is the Committee’s opinion that it is ethical for staff counsel of the VSB to direct a bar investigator or other outside investigator/volunteer to engage in covert investigative techniques in the investigation of the unauthorized practice of law in any case in which no other reasonable alternative is available to obtain information against the person engaging in the unauthorized practice of law.

 

This opinion is advisory only and not binding on any court or tribunal.

 

Committee Opinion

June 16, 2009