Vol. 10, No. 44OOccttoobbeerr 3300,, 22000066 www.minnlawyer.com

By William Wernz

When we became Minnesotalawyers, we swore, so helpus God, that we would “use

no falsehood or deceit.” Once admit-ted, we have practiced law underrules that forbid “conduct involvingdishonesty, fraud, deceit, or misrep-resentation.” Lest the principle be for-gotten, a statute reminds us that anylawyer “who shall be guilty of any de-ceit or collusion, or shall consentthereto, with intent to deceive thecourt or any party, … shall be guilty ofa misdemeanor and in addition topunishment prescribed by law there-fore, shall forfeit to the party injuredtreble damages.”1

And yet, zealous lawyering withinthe bounds of the law produces finedistinctions and tension when itcomes to truthfulness.2 How shouldthe tension between truthfulness and

zeal be resolved when a lawyer, or alawyer’s investigator, seeks to inves-tigate the facts? Some facts are re-vealed only through guile, indirectionor subterfuge. Which of the seven fol-lowing activities are cardinal sins ofprevarication and which, instead, areaggressive but legitimate tactics?

1. Conway runs a business and alawyer suspects that the business reg-ularly violates certain laws. Thelawyer hires an investigator, to poseas “George Heinl”, to ask Conway toperform services for a fictitious com-pany, and to give advice regarding afictitious set of accounts.

2. A lawyer makes four phone calls,three in Minnesota, one to anotherstate — to adverse counsel, to ajudge, to a witness and to a client —

and secretly tape records the calls.Let’s pause here, to learn a per-

haps surprising fact about theethics of truthfulness: some activi-ties condemned as deceitful in oneera are acceptable in another era.The lawyers who hired “Heinl”were the Unauthorized Practice ofLaw Committee of the RamseyCounty Bar Association. The Min-nesota Supreme Court recountedtheir activities without batting aneye. Gardner v. Conway , 234Minn., 468 N.W.2d 788 (Minn. 1951).

‘Pretexting,’ prevaricating and getting the facts

Earlier this month, California’s attorney general filed criminal charges in a corporate spying scandal against former Hewlett-Packard Co. Chair-woman Patricia Dunn, left, ousted HP chief ethics officer Kevin Hunsaker, second from left, private investigator Ronald DeLia, second from right,and outside investigator Bryan Wagner. (AP Photo)

William Wernz was the director of the Officeof Lawyers Professional Responsibility from1985-92, and has been an ethics and trialpartner at Dorsey & Whitney in Minneapo-lis since 1992. Some of the thoughts and ci-tations in this article first appeared in Wernz,“Investigation Ethics,” Hennepin Lawyer(March / April 2005).

Although the secret record-ing in the second examplewas proscribed by the ABAand by the MinnesotaLawyers Board for 30 yearsas deceitful and worthy ofdiscipline, their prohibi-tions have been retracted.3

Whether the secretly wiredlawyer is a paragon of pro-fessionalism may still bedoubted.

3. A lawyer representing alitigant hires an investigatorto go to an adverse party’sstore and pose questionsto salespeople about prod-ucts. The lawyer hopes thatthe sales staff will divulgeinformation helpful to theclient’s case, assuming thatthe investigator is a cus-tomer.

Pausing here, we canlearn that what is regard-ed as truthful and legiti-mate varies by place aswell as time. The 8th U.S.Circuit Court of Appealsexpressed no doubts thatsuch posing is deceitful,even when it does not in-volve any communicationof false identity or purpose.Midwest Motor Sports, Inc.

v. Arctic Cat Sales, Inc.,347 F.3d 693 (8th Cir.2004).4 Other courts takethe opposite view. For ex-ample, in Gidatex, S.r.L. v.

Campaniello Imports, Ltd.,82 F.Supp.2d 119 (S.D.N.Y.2000), the court dismissedallegations of improprietybecause “hiring investiga-tors to pose as consumersis an accepted investigativetechnique, not a misrepre-sentation.” The MinnesotaOffice of Lawyers Profes-sional Responsibility itselfhas been known to call theoffice of a disbarredlawyer, to determinewhether the disbarmenthas actually taken effect —“Hello, I’m Lynda Olson

and I’m wondering whetherMr. Doe is available for rep-resentation in a family lawmatter.”

4. A lawyer representingcreditors sends to judg-ment debtors small checksdrawn on an account for“XYZ,” a fictitious organi-zation. The lawyer hopesthe debtors will deposit thechecks in their accountsand the returned checkswill reveal useful informa-tion about the accounts.The lawyer also seeks in-formation by telephone,identifying himself by thefictitious name “MarkRose.”

An important line hasbeen crossed here — thelawyer has given literallyfalse information. The Min-nesota Supreme Court rep-rimanded the lawyer for hisdeceitful impersonationand for his apparently too-imaginative XYZ gambit. Inre Luther, 374 N.W.2d 720(Minn. 1985).

5. Two in-house counselassist a company investi-gation of the company’sboard members by helpingto retain and direct investi-

gators. The investigatorsengage in “pretexting” (giv-ing false information sothat others will discloseuseful information). An in-vestigator obtains boardmembers’ telephonerecords by giving telephonecompanies the members’personal information andby impersonating them.One of the in-houselawyers knows of the in-vestigators’ activities. Theother counsel, the compa-ny’s chief ethics officer,asks the head of securitywhether the investigation“is all above board,” is toldit’s “on the edge,” and sighs,“I shouldn’t have asked.”5

Sound familiar? Again,discipline would be war-ranted because a line re-garding literally false state-ments was crossed whenthe investigator posed as acollege student and as aboard member.6 But if in-house counsel left the in-vestigator to his or her owndevices, would counsel besubject to discipline? Rule5.3 gives an affirmative an-swer. “With respect to anonlawyer employed or re-

tained by or associatedwith a lawyer: … (b) Alawyer having direct su-pervisory authority overthe nonlawyer shall makereasonable efforts to en-sure that the person’s con-duct is compatible with theprofessional obligations ofthe lawyer.” Several disci-plines have been issued toattorneys whose assistantsor investigators were notsufficiently supervised ortrained and who then con-tacted represented parties,used deceitful tactics, etc.One leading commentatorrecommends that, to avoidattorney restrictions on de-ceit, the client retain an in-vestigator directly, but thecurrent HP imbroglioshows the limitations ofthis recommendation.7

Another line may havebeen crossed, the linedrawn by criminal laws. Ifthe investigation relates topending litigation, andcounsel is involved in de-ceit, counsel may havecommitted a misdemeanor.The investigator may haveviolated laws regarding ob-taining another’s phone

An exterior view of Hewlett-Packard Co. headquarters is seen in Palo Alto, Calif. (AP Photo/PaulSakuma)

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records by deceit.8 Alawyer who directly, orthrough an agent, uses“methods of obtaining evi-dence that violate the legalrights” of another, therebyviolates Rule 4.4(a), Minn.R. Prof. Conduct.

6. The police, workingclosely with a prosecutor,use an undercover agent,with a false identity and ahidden wire, to elicit incul-patory statements from atarget. The target’s lawyerhires an investigator whoemploys similar tacticsagainst a prosecution wit-ness.

Doesn’t law enforcementneed to be deceitful to beeffective? If so, shouldn’t

criminal defense lawyersand their investigators en-joy a similar dispensa-

tion? In Oregon, govern-ment attorneys appearedas amici when a privatelawyer, in a matter unre-lated to law enforcement,faced discipline for pos-ing. In re Gatti,8 P.3d 966(Or. 2000). Although Gattiwas disciplined, the Ore-gon Supreme Court sub-sequently adopted anethics rule that allowslawyers — not just gov-ernment lawyers — to ad-vise or supervise “lawfulcovert activity in the in-vestigation of violationsof civil or criminal law orconstitutional rights.”

What lessons can be learned fromthese cases? Where is the line drawnbetween praiseworthy aggressive in-vestigating and impermissible deceit?

FIRST LESSON. For many inves-tigative activities, there is a twilightzone. What is acceptable in one ju-risdiction or one era may be unac-ceptable in another. Lawyers shouldrecognize that their vocation, partic-ularly when they act as advocates,sometimes involves a difficult rela-tionship with truth-telling. We nor-mally believe our clients and we of-ten state facts and conclusions in away that is not untruthful, but favorsthe clients’ positions. Perhaps inrecognition of this inherent ambigu-ity, the Minnesota Supreme Courthas required a showing of intent be-fore false statements can be disci-plined under Rule 8.4(c).1

SECOND LESSON. Just becausewe have twilight, does not mean thatwe do not have night and day. Someactivities are clearly deceitful andsubject to discipline and penalties.Normally, literally false statementsfall into the prohibited category.

THIRD LESSON. Not everyone isequal, and determinations of equalfooting are difficult. What may be

tolerable for those who enforce lawsagainst discrimination – e.g. using“testers” who affirmatively misrep-resent themselves as interested inrenting certain apartments — maynot be tolerable generally for lawyersand their investigators. If we tolerateuse of deceitful investigation tech-niques by those enforcing criminallaws, should we not accord a similarlatitude to investigators for criminaldefendants?

FOURTH LESSON. We are keep-ers of our brothers and sisters, the in-vestigators we retain and the legalassistants we employ. Rule 5.3 re-quires lawyers to school their agentsin the ways of legal ethics. TheHewlett-Packard fiasco shows thateven for business corporations thatare not bound by lawyers’ ethicsrules, sub-contracting dirty workdoes not insulate from responsibility.

FIFTH LESSON. Lawyers andtheir investigators have no exemp-tion from criminal laws. Although alawyer’s purposes and legitimate ac-tivities may be relevant to an issue ofcriminal intent, a lawyer will find itdifficult to escape prosecution by ar-guing that a certain amount of de-ceit goes with the vocation.

SIXTH LESSON. Hindsight is not

always 20-20. It is easy to say whatHP should not have done. Howshould HP have proceeded? The reg-ular leaking of confidential informa-tion by a board member was intoler-able. What legitimate means wereavailable to identify the leaker?

SEVENTH LESSON. We shouldconsider not just the acceptable min-imum, but the standards of true pro-fessionalism. The freedom to se-cretly tape record does not meanthat our duties as zealous advocatesrequire that we use such techniques.But even truly professional lawyersdo not always wear white gloves.“Avoiding even the appearance ofimpropriety” is a maxim that doesnot take full account of the ambigu-ities inherent in advocacy and theduty to employ warm zeal in pursuitof the facts.

— William Wernz

1 See In re Westby, 639 N.W.2d 358, 370 (Minn.

2002) (“a lawyer … violates Rule 8.4(c) by

making false representations with an intent to

deceive”). See also In re Letourneau, 712

N.W.2d 183 (Minn. 2006) (“We have indicated

that a lawyer’s statements made with ‘intent to

deceive’ constitute a violation of Rule 8.4(c)).”

Lessons learned from pretext cases

MINNESOTA LAWYER October 30, 2006 ■ 3

”“Doesn’t law enforcement need to

be deceitful to be effective? If so,

shouldn’t criminal defense

lawyers and their investigators

enjoy a similar dispensation?

“Covert activity … meansan effort to obtain infor-mation on unlawful activitythrough the use of misrep-resentations or other sub-terfuge.”9

1 Minn. Stat. 358.07 (9); Rule8.4(c), Minn. R. Prof. Conduct;Minn. Stat. sec. 481.071. Baker v.

Ploetz, 616 N.W.2d 263 (Minn.2000) held that this statute appliesonly regarding judicial proceed-ings.2 For example, advocates may,and criminal defense attorneysmust, when the defendant insistson testifying, adduce evidencethat they “reasonably believe,” butdo not actually “know,” to be false.Rule 3.3(a)(3), R. Prof. Conduct.3 ABA Standing Committee onEthics and Professional Respon-sibility Formal Op. 01-422, “Elec-tronic Recordings by Lawyers

Without the Knowledge of All Par-ticipants,” withdrawing ABA For-mal Op. 337 (1974). Lawyers BoardOp. 18 was repealed April 18, 2002.See Minnesota Lawyer, June 3,2002, at 2. The secretly recordedcall to another state could violatethe laws of that state, although se-cret recording by one party to aconversation is not illegal in Min-nesota and in most states.4 The Eighth Circuit also imposedsanctions on an attorney who ob-tained credit reports through falsepretenses and in violation of theFair Credit Reporting Act. Baker

v. McKinnon, 152 F.3d 1007 (8thCir. 1998). 5. This colloquy occurred byemail, between Kevin T. Hunsaker,senior counsel and chief ethics of-ficer of Hewlett-Packard and HP’ssecurity chief. NY Times, Sept. 20,2006, at C2. A separate e-mail fromHunsaker appeared to take a dif-ferent tack, stating that HP gener-al counsel “has asked me to over-

see the investigation into this inorder to protect the attorney-clientprivilege in the event there is liti-gation or a governmental inquiryof some sort.” ABA Journal E Re-port, Oct. 6, 2006. For a recent ex-ample of public reprimand for un-ethical investigative tactics, seeAllen v. International Truck and

Engine, 2006 WL 2578896 (S.D.Ind. Sept. 6, 2006).6 William J. Wernz, “Summary ofAdmonitions,” Bench & Bar ofMinnesota (Feb. 1992). 7 Geoffrey Hazard, “”Lawyers notprivate eyes,” National Law Jour-nal, Apr. 10, 2000, at A23. 8 State v. Casby, 348 N.W.2d 736(Minn. 1984) (Affirming convic-tion for assisting client’s deceivingthe court as to his identity, andrejecting attorney’s defensesbased on privileged, constitution-al rights, and attorney role.).Arnold v. Cargill , 2004 WL2203410 (D. Minn. 2004) found aRule 4.4 violation where a law

firm improperly obtained and re-tained another’s privileged docu-ments. In the Hewlett Packard sit-uation, state felony charges havebeen brought for alleged fraudu-lent wire communications, wrong-ful use of computer data, identitytheft and conspiracy. Defensecounsel states that outside coun-sel told HP officials that the in-vestigative means “were not gen-erally unlawful.” ABA Journal EReport, Oct. 6, 2006.9 See Oregon R. Prof. Conduct8.4(b), which allows lawyersseeking to uncover “unlawful ac-tivity” to advise and superviseothers who use misrepresenta-tion and other “covert activity.”Apparently Oregon lawyers maynot, however, dirty their ownhands. Arizona Bar Ethics Op.99-11 found deceit by discrimi-nation “testers,” acting under at-torney supervision, to be neces-sary and proper.

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