Summary: Bar authorities and courts sometimes give conflicting
interpretations of what ethics rules permit or forbid on aggressive litigation
tactics such as lawyers' use of deception, according to ethics expert Thomas E.
Significance: Because bars and courts share authority to enforce
ethics rules, lawyers should keep current on what both sources of authority have
had to say on litigation ethics.
By Samson Habte
On some legal ethics issues, it seems, trial judges are from Mars and bar
disciplinary officials are from Venus. Or vice versa.
The different interpretations that courts and ethics officials sometimes give
to disciplinary rules was a prominent theme in remarks that ethics expert Thomas
E. Spahn made June 13 during his continuing legal education presentation on
litigation ethics at Bloomberg BNA.
Spahn, a partner of McGuireWoods in Tysons Corner, Va., said that courts tend
to be more accommodating than ethics authorities when assessing the propriety of
arguably “deceptive” investigative tactics.
On the other hand, he added, judges tend to be less forgiving than bar
officials when considering the scope of lawyers' obligations to disclose adverse
Accordingly, Spahn said, “Although lawyers should be wary of taking their
cues from case law rather than ethics rules and opinions,” attorneys nonetheless
should keep up on emerging trends that reveal courts' and bars' dichotomous
approaches to these issues.
Because judges and bar officials share responsibility for enforcing ethics
rules, he said, lawyers should be cognizant of the fact that, in some instances,
conduct frowned upon by bar officials will not necessarily draw the ire of
judges. Alternatively, Spahn cautioned, lawyers should be aware that courts may
sanction conduct that professional responsibility committees may have deemed
proper in previous ethics opinions.
Spahn's program addressed a range of ethics quandaries faced especially by
Some of these issues include: limitations on attorney speech when discussing
cases with the media or criticizing judges in public; deceptive investigative
tactics; the propriety of filing knowingly time-barred claims; and the scope of
lawyers' duties to disclose unfavorable facts, adverse law, and unpublished
The ethical boundaries of aggressive investigative tactics offer a clear
example of disagreements between courts and bar groups, Spahn stated.
Courts have been more forgiving than bar officials, he said, when presented
with complaints that lawyers unethically engaged in deceptive conduct to gather
evidence of crimes, housing discrimination, or commercial misconduct.
Such tactics, he said, might involve prosecutors organizing “stings” against
politicians suspected of bribery; civil rights lawyers directing clients to
surreptitiously record conversations with property owners accused of housing
discrimination; and plaintiffs' attorneys hiring investigators to pose as
consumers in order to gather evidence of trademark violations and other
Spahn said that all of these actions arguably could be deemed black-letter
violations of lawyers' professional obligations under four provisions in the ABA
Model Rules of Professional Conduct: Rule 1.2(d) (assisting client fraud), Rule
4.1(a) (truthfulness in statements to others), Rule 5.3(c) (supervision of
nonlawyers), and Rule 8.4(b) and (c) (prohibiting criminal or dishonest
conduct). In relevant part, those rules provide that lawyers:
counsel clients to engage in fraudulent conduct;
make false statements to third persons in the course of representing
responsible for the conduct of nonlawyers who commit ethics violations under
their direction; and
engage in criminal conduct reflecting adversely on their honesty, or conduct
“involving dishonesty, fraud, deceit or misrepresentation.”
Bar associations have endorsed deception by government lawyers engaged in
criminal or national security investigations, often doing so through what Spahn
characterized as “strained reading[s] of the ethics rules that they choose not
to apply in the same way to private lawyers.”
And “a handful of states” have given their imprimatur to private attorneys'
use of deceptive tactics to gather evidence of housing discrimination--although
the ABA has not officially done so, Spahn noted. See, e.g., Arizona Ethics Op.
Courts, however, have been even more embracing of such “deceptive” conduct,
according to Spahn, who said that judges have uniformly endorsed it in criminal
investigations and regularly blessed it in housing discrimination cases.
In his presentation on litigation ethics, Thomas Spahn cited several court
decisions in which judges refused to uphold sanctions brought against attorneys
who engaged in deceptive investigative tactics on behalf of a commercial
One such case was Gidatex S.r.L. v. Campaniello Imports Ltd., 82 F.
Supp.2d 119, 15 Law. Man. Prof. Conduct 481 (S.D.N.Y. 1999). There, a
plaintiff's attorney directed investigators to pose as interior designers and
record conversations with sales clerks employed by a furniture company accused
of trademark violations.
“The court acknowledged that under relevant New York ethics rules, the
salesclerks with whom the plaintiff's investigators spoke were 'represented
parties' for purposes of the prohibition on ex parte contacts,” Spahn wrote in
his program materials. “However, the court refused to find that plaintiff's
lawyer had violated the prohibition.”
The Gidatex court acknowledged that the lawyer's conduct “technically
satisfie[d] the three-part test generally used to determine whether counsel has
violated the disciplinary rules” governing ex parte contacts. The court
concluded, however, “that he did not violate the rules because his actions
simply do not represent the type of conduct prohibited by the
Most importantly, Spahn said, judges have approved such tactics “in
commercial settings,” while “bars traditionally limit their analysis to socially
worthwhile contexts such as housing discrimination tests.” (See
Courts may be more lenient than bar officials in assessing the propriety of
allegedly “deceptive” investigative tactics, but a different dynamic is evident
in debates over other purported ethics violations, Spahn told the program
For example, he said, judges are less forgiving than ethics authorities in
interpreting the scope of an attorney's duty to disclose adverse legal
That obligation comes from ABA Model Rule 3.3(a)(2) and its state
equivalents, which address attorneys' duties of candor toward a tribunal. The
model rule instructs that a lawyer shall not knowingly “fail to disclose … 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
Spahn said that the ABA's approach on this issue evolved in a way that
resulted in a steady “reduction in lawyers' disclosure duties” to courts.
Unfortunately for some attorneys, judges have not gone along with this
evolution, according to Spahn. “[A]s with other issues involving the duty of
disclosure, some courts require far more than the ethics rules require,” he
said, noting that “some courts take a remarkably broad approach.”
The ABA's first pronouncement on lawyers' professional responsibilities--the
1908 Canons of Professional Ethics--contained a fairly narrow duty of candor to
courts, Spahn observed. “In essence,” he remarked, “the old Canon simply
required lawyers not to lie about case law.”
In 1935, the ABA issued its Ethics Opinion 146, which greatly expanded that
obligation. Citing the lawyer's duty as an officer of the court to aid the
“administration of justice,” the opinion interpreted ethics principles as
requiring a lawyer to “advise the court of decisions adverse to his clients'
contentions that are known to [the lawyer] and unknown to his adversary.”
The ABA “did not explain the reach of this duty,” Spahn said, “but certainly
did not limit the disclosure obligation to controlling case law or even to
In Ethics Opinion 280, released in 1949, the ABA expressly stated that the
duty to disclose adverse authority extended so far as to encompass any
cases--even those from other states--that might “reasonably be considered
important by the judge sitting on the case.”
That expansive declaration was pared back in subsequent years. The current
scope of an attorney's obligation is described in Comment  to Model Rule 3.3,
which explains that attorneys must disclose only “directly adverse authority in
the controlling jurisdiction.”
Accordingly, the rule on its face does not require the disclosure of adverse
law from another state--unless, Spahn noted, “that state supplies the
controlling law in the case.”
However, in practice it appears that some judges prefer the former ethos on
disclosure of adverse authority.
“[S]ome courts ignore the ABA Model Rules,” Spahn wrote in his materials,
“and instead essentially revert to the 1949 ABA legal ethics opinion” that
required the disclosure of any authority “which would reasonably be considered
important by the judge sitting on the case.”
The ABA/BNA Lawyers’ Manual on Professional Conduct is a joint publication of the American Bar Association Center for Professional Responsibility and Bloomberg BNA.
Copyright 2012, the American Bar Association and The Bureau of National Affairs, Inc. All Rights Reserved.