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The non-legal press doesn’t usually get very deep into questions of legal ethics, but New York Magazine did a reasonable job of it in its hard-hitting piece this week on “The Bad, Good Lawyer” David Boies.

The article asks whether Boies has crossed an ethical line, principally in his work on behalf of Harvey Weinstein (This blog argued before that he did, in The Weinstein Saga: Now Featuring Lying Investigators, Duplicitous Journalists, Sloppy Lawyers.)

While admirably tough on Boies, it’s a shame the piece conflates unethical, illegal or even bad behavior with the decision by Boies to represent Russian oligarch Oleg Deripaska, Republican fundraiser Elliott Broidy or former Malaysian Prime Minister Najib Razak, who is accused of money laundering. There is no indication Boies enables these people or is somehow complicit in what they did to get themselves into trouble.

Similarly unnecessary in a serious look at a lawyer’s ethics are throwaway lines such as Boies’ “cozy personal relationship” with Bill Clinton. If that’s a negative, you could say the same about dozens of lawyers and hundreds of famous people.

But, the information in the story about the involvement of Boies’ daughter in movies produced by Weinstein’s company while Boies was advising Weinstein was interesting, as were the attacks by Boies on one outspoken Weinstein Company director, Lance Maerov, who turned out to be asking good questions about Weinstein’s personal conduct. Unlike some of the Weinstein Company directors, Maerov was doing his job.

What’s as disturbing as the way Boies and his firm failed to supervise a fraudulent investigation into Weinstein accusers and others by Israeli company Black Cube, is the defense of the practice by lawyers interviewed by the magazine. As we wrote about before, the agents of a U.S. lawyer shouldn’t go around pretending to be people they are not. A U.S. lawyer has the duty to supervise any agents the lawyer hires. Period.

Yet New York reports that “Some corporate litigators shrug off the Black Cube revelations, saying the only thing that was surprising was that all the embarrassing details escaped the usual vault of attorney-client confidentiality. ‘That happens, it doesn’t shock me,’ [prominent entertainment lawyer] Bert Fields says of the firm’s impersonation practices.”

Even worse was the quote from “another attorney who has dealt with Boies in the past,” who brushed the fraud off this way: “The technique is a tool … Lizzie Borden misused the ax.” Many lawyers said similar things to the article’s author: “This is just what lawyers do.”

If this is just what lawyers do, those lawyers ought to be disciplined for it.

Lawyers who know anything about professional responsibility know it is wrong to send investigators out to commit fraud. A quick instruction to “follow the rules” is not enough to qualify as adequate supervision.

Getting away with it is hardly justification. Imagine if someone defended unauthorized dipping into client escrow accounts. As long as the money gets paid back and the client is no wiser, who is harmed?

No lawyer would dare make that argument, but in the case of using fraudulent techniques, it’s all supposed to be OK if you don’t get caught.

If anyone wants to hire a lawyer they want to be sure won’t cross ethical lines, this is a good test question for them: Is it OK to hire investigators to set up fake identities to lure people into interviews?

For more good ways to screen for lawyers and investigators who know and abide by the rules, see my American Bar Association article, Five Questions Litigators Should Ask Before Hiring an Investigator (and Five Tips to Investigate it Yourself).

The big heavy breathing lead story in the Sunday New York Times this week was about the increasing number of government agencies using undercover operations to detect law breakers of all kinds. The Small Business Administration, the IRS, even the U.S. Supreme Court Police have agents hiding badges, blending into crowds and perhaps using assumed identitieundercover investigation ethics.jpgs.

Should lawyers follow this lead? Usually the answer is no, for two reasons.

  1. Undercover work can quickly veer into areas deemed unethical for lawyers and their agents.
  2. Going in through the “front door” can often get you information just as good as the secret agent product. Better still, it will be admissible and won’t risk a professional disciplinary hearing.

Ethical rules. Police officers, journalists, and many others are allowed to lie to get what they want. Attorneys are allowed to “dissemble,” but outright lying is frowned upon for attorneys and their agents. The ABA model rules in this area tend to be the same nationwide: Rule 4.1 covers truthfulness in statements to others, and Rule 8.4(c) says that it is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit or misrepresentation.

That’s the reason our firm will not engage in pretexting, the common term for pretending to be someone else. This is the way investigators gain access to phone records, banking and health records, none of which is legal: they pretext, or pretend to be the person who has the right to these records. The Gramm-Leach-Bliley Act covers pretexting to get bank records, the Telephone Records and Privacy Protection Act of 2006 covers the same area for phone records, the Drivers Privacy Protection Act does same for motor vehicle records, and of course there is HIPAA for health records.

The exceptions? Pretexting is generally accepted as ethical in the context of race discrimination in housing and certain intellectual property cases. Process servers get away with it too, in general.

The Front Door. We have found, time and again, that calling people on the phone at a time convenient to them and being truthful about who we are can yield enormously healthy results. Even when our clients tell us we may not identify them, people are still happy to talk to us a lot of the time about former colleagues, places of work, and other topics. This, despite having no clear idea why we want the information.

The main secret in getting people to talk? Be nice to them, be patient, and let them talk without cutting them off. Without a badge or a subpoena, courtesy is the best tool out there.

Being nice to people and telling them the truth about who you are means you run very low risks of getting into ethical trouble. Suppose they want to give you trade secrets? What if they are already represented in the matter and you violate the no-contact rule (rule 4.2)?

If you are pretending to be someone else, you can’t very well ask them whether or not they are represented, and you can’t warn them that you are not looking for them to violate confidentiality agreements. But as yourself, a lawyer or a lawyer’s agent, you can and should do those things before you get down to talking about substantive matters.

In so doing, you will greatly increase the odds that the evidence you get is admissible, and you will avoid a trip to the disciplinary department of your local bar association.