Use of Covert Tactics Ethical in Unauthorized Practice of Law Investigations, Virginia UPL Committee Finds
The Virginia State Bar’s Unauthorized Practice of Law (UPL) Committee recently found that it is ethical for staff counsel of the Virginia State Bar to direct a bar investigator or other outside investigator or volunteer to engage in covert techniques in the investigation of the unauthorized practice of law in any case in which no other reasonable alternative is available.
The Committee noted that law enforcement authorities, including government lawyers, are authorized to conduct or supervise undercover operations using deception to gather information about criminal conduct. The Committee’s opinion is that lawyers involved in or supervising undercover activity in such cases are not acting unethically despite the general prohibition against conduct involving fraud, dishonesty, deceit, or misrepresentation reflecting adversely on the lawyer’s fitness to practice law.
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. The Supreme Court of Virginia has specifically approved a legal ethics opinion that recognizes a “law enforcement” exception. This exception includes civil investigations using “testors” conducted under the supervision of government lawyers charged with investigation and prosecuting cases of housing discrimination. The Committee said it sees no principled distinction between these types of investigations, in which undercover operations have been approved, and a UPL investigation in which lawyers and agents of a governmental agency are charged by law with the investigation of conduct that is criminal or illegal.
MORE: The Committee’s opinion (site)