Risks of Using Undercover Investigations

March 27, 2002

Lawyers who rely upon undercover investigators or arguably deceptive conduct risk violating two ethics rules: (1) the rule prohibiting lawyers from causing another to communicate ex parte with a represented adversary and (2) the general rules prohibiting misleading conduct. Some states permit lawyers to arrange for investigators to engage in limited deceptive conduct (such as posing as consumers to check on an adversary’s compliance with a court order not to sell or disparage certain products, etc.), but the law in this area is not very well developed.

In Jones v. Scientific Colors, Inc., Nos. 99 C 1959 & 00 C 171, 2001 U.S. Dist. LEXIS 18282 (N.D. Ill. Nov. 5, 2001), the Court declined to disqualify a lawyer who may have had some role in arranging for an undercover investigator to establish direct contact with a plaintiff, but the Court implied that a lawyer could face disqualification for directly arranging such contacts.

Lawyers considering hiring private investigators or others who could engage in arguably deceptive practices must be careful to comply with the pertinent courts’ approach to this difficult issue.