Deceptive Investigative Techniques: Civil and Criminal Contexts

The Rules of Professional Conduct proclaim that lawyers should never resort to “conduct involving dishonesty, fraud, deceit, or misrepresentation.” The rules further provide that a lawyer may not instruct others to engage in conduct that is ethically forbidden to lawyers. But criminal prosecutors routinely supervise undercover agents who misrepresent their identities. And a 2007 Ethics Opinion by the NYCLA Committee on Professional Ethics carves out two subject matters in which a certain level of “pretexting” is considered necessary and acceptable. These subject matters are intellectual property and civil rights investigations.

But does it make sense to permit misrepresentations in some areas of the law and not others? And why should prosecutors be given ethical leeway that is denied to defense lawyers in the same cases? It is difficult to navigate the ethical boundaries of permissible pretexting.

This panel of practitioners and law professors will provide a lively, interactive discussion of this challenging and evolving area of the law.

Please join in-person or via webinar.

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