VSB Standing Committee on Legal Ethics Seeking Public Comment on Legal Ethics Opinion 1845
Use of Covert Tactics by the Virginia State Bar in Unauthorized Practice of Law Investigations
Pursuant to Part Six: Section IV, Paragraph 10(c)(iii) of the Rules of the Supreme Court of Virginia, the Virginia State Bar’s Standing Committee on Legal Ethics (“Committee”) is seeking public comment on proposed advisory Legal Ethics Opinion 1845, Use of Covert Tactics by the Virginia State Bar in Unauthorized Practice of Law Investigations.
This opinion addresses the ethical propriety of staff counsel to the UPL Committee supervising an undercover investigation to determine whether someone is engaging in the unauthorized practice of law. The staff counsel are not conducting the covert investigation, but have directed a lay staff investigator, regularly employed by the VSB, to perform the covert investigation. The tactics or techniques used by the investigator would involve some form of deception, i.e., misrepresentation of identity or purpose, in order to catch the suspect engaging in conduct that is unlawful or criminal. The Committee observes that one who engages in the unauthorized practice of law is committing a criminal act. It is generally known and very well accepted that law enforcement authorities, including government lawyers, are authorized to conduct or supervise undercover operations using deception to gather information about criminal conduct. The Committee believes that use of an undercover or “sting” operation by a lay investigator, under the direction of staff counsel, does not violate the Rules of Professional Conduct. The Supreme Court of Virginia has specifically approved a legal ethics opinion that recognizes a “law enforcement” exception to Rule 8.4 (c). The Committee also believes that, although undercover investigations involve some elements of misrepresentation and deceit, the conduct does not reflect adversely on the fitness or character of the lawyer directing or supervising a lawful criminal investigation.
Inspection and Comment
The proposed advisory opinion may be inspected at the office of the Virginia State Bar, 707 East Main Street, Suite 1500, Richmond, Virginia 23219-2800, between the hours of 9:00 a.m. and 4:30 p.m., Monday through Friday. Copies of the proposed advisory opinion can be obtained from the offices of the Virginia State Bar by contacting the Office of Ethics Counsel at 804-775-0557, or can be found at the Virginia State Bar’s website at http://www.vsb.org
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Any individual, business or other entity may file or submit written comments in support of, or in opposition to, the proposed advisory opinion by filing ten copies with Karen A. Gould, the Executive Director of the Virginia State Bar, not later than June 15, 2009.
