State Bar Rules and Investigators

Do The Legal Canons of Ethics Impact
On Investigators?

By Michael O. Hawkins, J.D.
The Hawkins Group - Investigations

It is a well established fact that in order to practice law in the United States, a lawyer must be a member of a state bar association. Each of the fifty state bar association have adopted a set of rules or canons of ethics that their lawyers must follow. In Washington State, these rules can be found in the Washington State Court Rules, Rules of Professional Conduct. In addition, the American Bar Association, a voluntary organization that drafts model rules which many state bar associations adopt, in whole or in part, is a major player in establishing what ethical standards lawyers should meet. Although there is a lack of uniformity between the state ethical standards, there are general principals that apply in every state. Failure by a lawyer to follow those rules can result in disciplinary sanctions, up to and including loss of the license to practice law.

It is necessary that any investigator, be it in the public or private sector, be aware of certain bar association ethical rules as the investigator's actions may impact upon a member of the Bar for whom the investigator is working. Rule 5.3(c)[1] states that a lawyer is responsible for the conduct of a non-lawyer, if the lawyer supervised or ordered conduct or if the lawyer "ratified" the conduct or could have prevented or mitigated the effect or impact of the conduct. A second rule, Rule 8.4(a)[2] states that it is professional misconduct for a lawyer to violate the rules of professional conduct through the acts of another.

Government investigators, be they local police or Federal Agents do not normally consider themselves to be under the supervision or control of prosecuting attorneys, although some judges may still hold them accountable for the investigator's conduct on the basis of the bar associations rules. In the private sector, private investigators are often hired by attorneys to investigate cases for them and in such circumstances the likelihood that the "supervision or control" standard would be met. Even when the investigator is neither "supervised" nor "controlled" by the attorney, there is the possibility that the attorney could "ratify" the conduct and therefore be held responsible. This situation would normally arise when opposing counsel seeks to have evidence excluded on the ground that the use of such evidence obtained by an investigator in violation of a rule constitutes a "ratification" of that violation by the attorney seeking to introduce the evidence.

Most investigators, upon learning of the attorney conduct rules, come to the conclusion that they as investigator's, should conduct their investigations totally independently of any input by a lawyer and in this way avoid the pitfalls lurking in the canons of ethics. As a practical matter, investigators find that there many situations where involvement by attorneys cannot be avoided. For governmental investigators these situations often arise due the need to involve prosecutors in the issuance of grand jury subpoenas, seeking warrants and in the investigation of complex cases. Private investigators who often work directly for attorneys are almost always in the situation where the involvement, direction or control of their employing attorney requires strict adherence to the canons of ethics.

Law enforcement investigators are further limited by Rule 3.8(e)[3] which requires that prosecutors to not allow investigative agents to make pre-trial, out-of-court statements that would have a substantial likelihood of materially prejudicing a proceeding or that would have a substantial likelihood of heightening public condemnation of the accused.

There are several rules applicable to Washington lawyers of which investigators should be fully aware:

1. Contacts with Represented Persons. In Washington the rules prohibit a lawyer from communicating with a person that the lawyer knows to be represented by a lawyer about the subject matter of that representation,( Rule 4.2(a)[4] ). The rule however does permit such a communication is done with the consent of the opposing counsel or is otherwise authorized by law. This rule, when read alone or in conjunction with other rules, such as those discussed earlier, would prohibit an investigator working on a case with a lawyer from engaging in a communication when the lawyer could not do so.

This rule, by its very nature raises some important questions such as (A) How does an investigator know when an individual is represented by an attorney? (B) What if the individual has been represented by a lawyer in the past? (C) If the "individual" is in fact a corporation which employs a General Counsel, does that general counsel represent the corporation on the matter you are investigating? (D) Which persons in a corporation does the General Counsel represent? (E) Is a former employee considered to be represented by a corporation's General Counsel? (F) Is it necessary to ask every person you wish to contact if he/she is represented by a lawyer? (G) Can an individual consent to the communication or does the lawyer have to consent? (H) Since the rule only prohibits communications about the subject matter of the representation, may you talk to an individual about a different but related subject? (I) What is a "communication" within the framework of the rule? (J) When are you "authorized by law" to communicate with a represented person? These are not easy questions to answer, but are extremely important ones that must be answered.

A. You should pay close attention to what the individual says on this issue. In addition, where the individual has a lawyer on one case, for example, a federal bank robbery, you should probably "know" that the individual is also represented in a concurrent state investigation, unless there are solid reasons not to think so such as when a lawyer tells you he does not represent the individual in your investigation.

B. Past representation by a lawyer is generally insufficient for you to know if the individual is represented currently or not. However, if the lawyer continues to work for the individual, that is a fact that must be considered.

C. As a "rule of thumb", the fact that a corporation has a General Counsel does not mean that the corporation is represented with respect to the subject matter of your particular investigation into a specific incident or practice.

D. The truly "legal" answer to this question is that "it depends". The answer could hinge on where the case is or will be tried, or where the lawyers for the corporation are members of the bar.

E. In many jurisdictions, a former employee is not considered to be represented by a former employer's attorney. This would mean that you would be free to communicate freely with former employees about most things.

F. In most cases this is not necessary. However, if you have reason to believe that an individual is represented, you should ask.

G. Under interpretations of the rule, only the lawyer can consent to have his client talk to you, the individual does not have the authority to waive this requirement.

H. Again, the answer to this question depends upon the relationship between the two subjects.

I. A "communication" under the Rule can consist of listening and writing or even receiving a letter from a represented individual.

J. Generally, this rule has been interpreted to mean that you may communicate with a represented individual if a specific law, a court order, or a previous decision of the court in the jurisdiction would permit it.

2. Methods of Obtaining Evidence. Investigators must not use a method or methods of obtaining evidence that violate the rights of another person. While everyone is well aware of the constitutional constraints placed on law enforcement by the Fourth and Fifth Amendments regarding illegal search and seizure and the right against self-incrimination, what limits are placed on private investigators? In Washington, this includes the requirements of Rule 4.4[5] which prohibit a lawyer from obtaining evidence by violating the "legal rights" of another person. Such rights would include constitutional and statutory rights as well as rights recognized by existing case law, including privileges.

3. Rules Regarding Trial Publicity. Every jurisdiction, including Washington, has a rule that provides that a lawyer should not make a statement that a reasonable person would expect to be disseminated by means of public communication if the lawyer knows, or should know, that the statement will have a substantial likelihood of prejudicing an adjudicative proceeding. (Rule 3.6)[6] Once again this is a rule that also applies to investigator working with lawyers. Due to the fact that these anti-publicity rules are designed and intended to assure a fair proceeding, it should not come as a surprise to anyone that the penalty for a violation can result in a reversal of a criminal conviction or the setting aside of a civil verdict.

4. The "Honesty" requirement. Washington courts, like all other courts, require that those who appear before it be honest. (Rule 3.3)[7]. This requirement for honesty means more than just simply telling the truth. It may also require you to provide additional information, rather than leave the court with an erroneous impression. It may also require you to correct the record in the court, even if the case has already been closed. This requirement of honesty applies whenever a lawyer, through an investigator or other non-lawyer, supplies information to the court, such as through an affidavit. If the affidavit does not tell the entire story (i.e. truth) then the case and the lawyer could suffer. An example would be where a witness who provided a deposition later discovers that information in the deposition was not correct.

Hopefully private investigators working in Washington are aware of how the legal Rules of Professional Conduct binding attorneys can also apply to them. For too many years the public has been presented with a Hollywood image of private investigators from Sam Spade to Shaft to Thomas Magnum. It is only by being professional and acting professional can private investigators demonstrate that Hollywood is not reality.

[1] WA State Court Rules of Professional Conduct: RULE 5.3

RESPONSIBILITIES REGARDING NONLAWYER ASSISTANTS

With respect to a nonlawyer employed or retained by or associated with a lawyer:
(a) A partner in a law firm shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that the persons conduct is compatible with the professional obligations of the
lawyer;

(b) A lawyer having direct supervisory authority over the nonlawyer shall make reasonable efforts to ensure that the person's conduct is compatible with the professional obligations of the lawyer; and

(c) A lawyer shall be responsible for conduct of such a person that would be a violation of the Rules of Professional Conduct if engaged in by a lawyer if:

(1) The lawyer orders or, with the knowledge of the specific conduct, ratifies the conduct involved; or

(2) The lawyer is a partner in the law firm in which the person is employed, or has direct supervisory authority over the person, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.

[2] WA State Court Rules of Professional Conduct: RULE 8.4

MISCONDUCT

It is professional misconduct for a lawyer to:
(a) Violate or attempt to violate the Rules of
Professional Conduct, knowingly assist or induce another to
do so, or do so through the acts of another;

[3] WA State Court Rules of Professional Conduct: RULE 3.8

SPECIAL RESPONSIBILITIES OF A PROSECUTOR

The prosecutor in a criminal case shall:

(e) Exercise reasonable care to prevent investigators, law enforcement personnel, employees or other persons assisting or associated with the prosecutor in a criminal case from making an extrajudicial statement that the prosecutor would be prohibited from making under rule 3.6.

[4] WA State Court Rules of Professional Conduct: RULE 4.2

COMMUNICATION WITH PERSON REPRESENTED BY COUNSEL

(a) In representing a client, a lawyer shall not communicate about the subject of the representation with a party the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized by law to do so.

[5] WA State Court Rules of Professional Conduct: RULE 4.4

RESPECT FOR RIGHTS OF THIRD PERSON

In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person.

[6] WA State Court Rules of Professional Conduct RULE 3.6

TRIAL PUBLICITY

A lawyer shall not make an extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication if the lawyer knows or reasonably should know that it will have a substantial likelihood of materially prejudicing an adjudicative proceeding.

[7] WA State Court Rules of Professional Conduct: RULE 3.3

CANDOR TOWARD THE TRIBUNAL

(a) A lawyer shall not knowingly:

(1) Make a false statement of material fact or law to a tribunal;

(2) Fail to disclose a material fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client unless such disclosure is prohibited by rule 1.6;

(3) Fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel;

(4) Offer evidence that the lawyer knows to be false.

(b) The duties stated in section (a) continue to the conclusion of the proceeding.

(c) If the lawyer has offered material evidence and comes to know of its falsity, the lawyer shall promptly disclose this fact to the tribunal unless such disclosure is prohibited by rule 1.6.

(d) If the lawyer has offered material evidence and comes to know of its falsity, and disclosure of this fact is prohibited by rule 1.6, the lawyer shall promptly make reasonable efforts to convince the client to consent to disclosure. If the client refuses to consent to disclosure, the lawyer may seek to withdraw from the representation in accordance with rule 1.15.

(e) A lawyer may refuse to offer evidence that the lawyer reasonably believes is false.

(f) In an ex parte proceeding, a lawyer shall inform the tribunal of all relevant facts known to the lawyer that should be disclosed to permit the tribunal to make an informed decision, whether or not the facts are adverse.

(g) Constitutional law defining the right to assistance of counsel in criminal cases may supersede the obligations stated in this rule.