To Catch a Criminal, to Cleanse a Profession: Exposing Deceptive Practices by Attorneys to the Sunlight of Public Debate and Creating an Express Investigation Deception Exception to the ABA \u3ci\u3eModel Rules of Professional Conduct\u3c/i\u3e

Although I doubt that anyone reading this Article has sworn such an oath (or openly advocates the use of such an oath for newly sworn attorneys), the issue of whether attorneys may ethically engage in deception has not enjoyed the thorough, open discussion necessary for a consistently applied standard. This must change. Nearly a century ago, Louis D. Brandeis wrote that publicity can remedy social diseases, because sunlight is the best disinfectant and can effectively police human behavior. A half-century before that, Lord Acton stated, “Every thing secret degenerates, even the administration of justice.” The legal profession, as guardian of the administration of justice, needs some disinfecting sunlight to pour over the attorney deception issue, one that for too long has vexed and perplexed attorneys and judges. As a profession, attorneys need a full and open debate to determine whether, and to what extent, it is ethical for attorneys to employ deception. This Article concludes that the American Bar Association (ABA) Model Rules of Professional Conduct (Model Rules) currently do not contain a deception exception, and that without such an exception, attorneys employing deceptive practices are subject to charges of unethical misconduct. There are circumstances, however, that reveal how society can benefit through the use of deception. For example, longstanding policies of federal and state governments employ deception in undercover criminal investigations, various civil-rights groups employ deception to root out and eradicate discrimination, and holders of intellectual property rights employ deception to ensure that others do not unlawfully infringe upon those rights. Although arguably a certain amount of deception is required to support these investigative efforts (because those suspected of unlawful activity are unlikely to continue their lawlessness if an investigator reveals his true purpose), there is no sound public policy that requires attorneys to personally engage in the deception. That does not mean, however, that, in the absence of positive law to the contrary, non-attorneys should be prohibited by attorney ethics rules from employing deception simply because an attorney directs the deception. This Article promotes a welldefined investigation exception to the prohibition of attorney deception, or what I term “the investigative deception exception.” Part II of this Article describes a recent news-making case involving attorney deception to set the stage for a discussion of whether attorneys may ethically engage in deception. Part III creates an analytical framework using the Model Rules to guide the discussion of disciplinary cases involving attorney deception. In Part IV this Article analyzes key disciplinary cases and ethics opinions implicating attorney deception. This Article then illustrates in Part V how some states have enacted express deception exceptions to their ethics rules. Finally, in Part VI this Article proposes an express investigation deception exception to the Model Rules. As the legal profession determines the scope of the deception exception, however, attorneys must stridently ensure that any unintended byproducts do not include the creation of distrust in the legal profession or the system of justice. Regardless of whether you ultimately agree with this Article’s proposed investigation deception exception, attorneys owe each other, the legal profession, the administration of justice, and the citizens that rely on our efforts, a full and open debate on the ethics of attorney deception. Let’s get to it