Ethics Opinion 323

Misrepresentation by an Attorney Employed by a Government Agency as Part of Official Duties

Lawyers employed by government agencies who act in a non-representational official capacity in a manner they reasonably believe to be authorized by law do not violate Rule 8.4 if, in the course of their employment, they make misrepresentations that are reasonably intended to further the conduct of their official duties.

Applicable Rules

• Rule 8.4 (Misconduct)

Inquiry

The Committee has received an inquiry on a matter relating to the obligation of an attorney under Rule 8.4(c). We are asked to determine whether attorneys who are employed by a national intelligence agency violate the Rules of Professional Conduct if they engage in fraud, deceit, or misrepresentation in the course of their non-representational official duties.

Discussion

Rule 8.4(c) of the Rules of Professional Responsibility makes it professional misconduct for a lawyer to “engage in conduct involving fraud, deceit, or misrepresentation.” This prohibition applies to attorneys in whatever capacity they are acting—it is not limited to conduct occurring during the representation of a client and is, therefore, facially applicable to the conduct of attorneys in a non-representational context. See ABA Formal Op. No. 336 (1974) (lawyer must comply with applicable disciplinary rules at all times).¹

The prohibition on misrepresentation would, therefore, facially apply to attorneys conducting certain activities that are part of their official duties as officers or employees of the United States when the attorneys are employed in an intelligence or national security capacity. Thus, though the inquirer asked specifically about misrepresentations made by intelligence officers acting in their official capacity as authorized by law, the principles enunciated in this opinion are equally applicable to other governmental officers who are attorneys and whose duties require the making of misrepresentations as authorized by law as part of their official duties.

Such employees may, on occasion, be required to act deceitfully in the conduct of their official duties on behalf of the United States, as authorized by law. It is easy, for example, to imagine attorneys whose work for the CIA might require their personal clandestine work and falsification of their identity, employment status, or fidelity to the United States. We are confronted with the question whether such misrepresentations run afoul of Rule 8.4’s anti-deceit prohibition.²

For three reasons, we conclude that Rule 8.4 does not prohibit conduct of the nature described.

First, our conclusion is premised on our understanding of the purposes for which Rule 8.4 was adopted. The prohibition against engaging in conduct “involving dishonesty, fraud, deceit, or misrepresentation” applies, in our view, only to conduct that calls into question a lawyer’s suitability to practice law. The Comments to Rule 8.4 discuss why the current version discarded earlier references to a prohibition on conduct involving “moral turpitude” (as the conduct that had been proscribed was referred to in our former Code of Professional Responsibility). Comment [1] explains that this somewhat archaic formulation,

can be construed to include offenses concerning some matters of personal morality, such as adultery and comparable offenses, that have no specific connection to fitness for the practice of law. Although a lawyer is personally answerable to the entire criminal law, a lawyer should be professionally answerable only for offenses that indicate lack of those characteristics relevant to law practice.

D.C. Rule 8.4, Comment [1]; see also In re White, 815 P.2d 1257 (Or. 1991) (concluding that Rule applies to conduct in violation of criminal law if it “reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects”).

Thus, in rejecting the formulation of “moral turpitude” and substituting the current anti-deceit formulation, the District of Columbia Court of Appeals has indicated its intention to limit the scope of Rule 8.4 to conduct which indicates that an attorney lacks the character required for bar membership. As the Comments elaborate, this may include “violence, dishonesty, breach of trust, or serious interference with the administration of justice.” D.C. Rule 8.4, Comment [1].³ But, clearly, it does not encompass all acts of deceit—for example, a lawyer is not to be disciplined professionally for committing adultery, or lying about the lawyer’s availability for a social engagement.

Given this understanding of Rule 8.4, in our judgment the category of conduct proscribed by the Rule does not include misrepresentations made in the course of official conduct as an employee of an agency of the United States if the attorney reasonably believes that the conduct in question is authorized by law. An attorney’s professional competence and ability are not called into question by service in our intelligence or national security agencies in conformance with legal authorization, nor is it called into question by the use of effective covert means to achieve legitimate national security goals. Cf. Apple Corps Ltd. v. International Collectors Society, 15 F. Supp. 2d 456, 476 (D.N.J. 1998) (concluding that investigator’s and tester’s misrepresentation of identity is not a misrepresentation of “such gravity as to raise questions as to a person’s fitness to be a lawyer”). As a consequence, we do not believe that Rule 8.4(c) is intended to reach lawful, authorized official conduct, even if there is a deceitful component to that conduct.

Second, our conclusion in this regard is buttressed by an analogous provision of the Rules and its construction within this jurisdiction. Rule 4.2 prohibits certain communications between a lawyer and an opposing party who is represented by counsel. This jurisdiction has construed the Rule to permit lawful law enforcement activity. Thus, our Commentary says that:

This Rule is not intended to enlarge or restrict the law enforcement activities of the United States or the District of Columbia which are authorized and permissible under the Constitution and the laws of the United States or the District of Columbia. The “authorized by law” proviso to Rule 4.2(a) is intended to permit government conduct that is valid under this law.

Rule 4.2, Comment [8].⁴

The Virginia Standing Committee on Legal Ethics recently recognized the parallel between law enforcement and intelligence activity in an opinion that is consistent with our views. In Va. Legal Ethics Opinion 1738 (2000), the Virginia Standing Committee considered whether the ethical rule prohibiting non-consensual tape recording then in effect in Virginia applied to law enforcement undercover activities. The Virginia Standing Committee concluded that it did not. In Va. Legal Ethics Opinion 1765 (2003), the Virginia Standing Committee then considered whether the policies animating the exception for law enforcement undercover activities expressed in Opinion 1738 also authorized the use of non-consensual tape recording and other covert activities by attorneys working for a federal intelligence agency. Reasoning by analogy to its earlier decision concerning law enforcement undercover activities, the Committee agreed that covert intelligence activities also serve “important and judicially-sanctioned social policies.” Accordingly Opinion 1765 concluded that “when an attorney employed by the federal government uses lawful methods such as the use of ‘alias identities’ and non-consensual tape-recording, as part of his intelligence or covert activities, those methods cannot be seen as reflecting adversely on his fitness to practice law; therefore such conduct will not violate the prohibition in Rule 8.4(c).” That reasoning is equally persuasive to this Committee.

To be sure, Rule 8.4 does not have an “authorized by law” proviso, like that in Rule 4.2, and the absence of such a provision authorizing deceit in the intelligence, national security, or other foreign representational context might be construed as indicating that such conduct is not permitted. Nonetheless, we agree with Virginia that the treatment of law enforcement activity is instructive of the proper treatment of intelligence activity. A better construction is to view Comment [8] to Rule 4.2 as expressing a general approval of lawful undercover activity by government agents and the failure to mention the myriad ways in which the issue might arise simply reflects the drafters’ focus on the more immediate issue of law enforcement activity that was before them. We do not think that the Court of Appeals intended to authorize legitimate law enforcement undercover activity while proscribing covert activity in aid of our national security; we would not impute so illogical an intent to the drafters absent far stronger evidence.

Third, “[t]he Rules of Professional Conduct are rules of reason. They should be interpreted with reference to the purposes of legal representation and of the law itself.” D.C. Rules, Scope, Comment [1]. Some activities conducted on behalf of the United States necessarily involve circumstances where disclosure of one’s identity or purpose would be inappropriate – and, indeed, potentially dangerous. We do not think that the Rules of Professional Conduct require lawyers to choose between their personal safety or compliance with the law, on the one hand,⁵ and maintenance of their bar licenses, on the other. See Utah State Bar Ethics Advisory Committee Op. No. 02-05 (2002) (relying on “rule of reasons” provision to conclude that government attorneys’ “lawful participation in a lawful government operation” does not violate Rule 8.4 if deceit is “required in the successful furtherance” of the undercover or covert operation).

For these several reasons we are convinced that the anti-deceit provisions of Rule 8.4 do not prohibit attorneys from misrepresenting their identity, employment or even allegiance to the United States if such misrepresentations are made in support of covert activity on behalf of the United States and are duly authorized by law.⁶

Finally, we emphasize the narrow scope of this opinion. It applies only to misrepresentations made in the course of official conduct when the employee (while acting in a non-representational capacity, see supra n.1), reasonably believes that applicable law authorizes the misrepresentations. It is not blanket permission for an attorneys employed by government agencies to misrepresent themselves. Nor does it authorize misrepresentation when a countervailing legal duty to give truthful answers applies. Thus, for example, false testimony under oath in a United States court or before the Congress is prohibited, see In re Abrams, 689 A.2d 6 (D.C. 1997) (en banc), notwithstanding any countervailing intelligence or national security justification. And, of course, this opinion does not authorize deceit for non-official reasons, or where an attorney could not, objectively, have a reasonable belief that applicable law authorizes the actions in question.

With that limitation, our conclusion is as follows: Lawyers employed by government agencies who act in a non-representational official capacity in a manner they reasonably believe to be authorized by law do not violate Rule 8.4 if, in the course of their employment, they make misrepresentations that are reasonably intended to further the conduct of their official duties.

Inquiry No.: 01-11-25
Adopted: 29 March 2004
Published: 30 March 2004

1. This opinion applies only to the conduct of attorneys acting in a non-representational capacity. It does not address potentially applicable requirements under Rule 4.1 (communication with clients), or Rule 4.3 (dealing, on behalf of clients, with unrepresented parties) which, inter alia, prohibits attorneys from making a false statement of material fact to a third party “in the course of representing a client.”
2. Rule 8.4(c) prohibits a lawyer from engaging in conduct “involving dishonesty, fraud, deceit, or misrepresentation.” And “fraud” is, of course, separately defined by the Rules. See D.C. Rules of Prof. Conduct, Terminology (defining “fraud” and “fraudulent” as “conduct having a purpose to deceive”). For convenience sake, we refer to Rule 8.4(c) as the anti-deceit provision, while recognizing that the scope of the prohibition may depend upon a close analysis of the meaning of each of the four related prohibitions.
3. In March 2003, the Virginia Supreme Court made this connection explicit by amending the Virginia version of Rule 8.4(c) to prohibit “dishonesty, fraud, deceit or misrepresentation which reflects adversely on a lawyer’s fitness to practice law.” Va. R. Prof. Cond. 8.4(c).
4. Some other jurisdictions have construed this provision to preclude law enforcement agents, acting at the direction of a lawyer, from conducting covert, undercover activity against individuals who are represented by counsel. Cf. In re Gatti, 8 P.3d 966 (Or. 2000), overruled, Or. DR 1-102(D) & Or. Formal Op. 2003-173.
5. In some circumstances, federal law affirmatively prohibits disclosure of information relating to the identity of covert agents, for example. See, e.g., 50 U.S.C. § 421.
6. This Committee lacks the expertise to precisely identify, for example, which covert activities are authorized by law. Moreover, such an enumeration would exceed our charter, which ordinarily limits our opinions to interpretations of the District of Columbia Rules of Professional Conduct. We emphasize, however, that for conduct to come within the safe-harbor of this opinion the lawyer must reasonably believe that the conduct in question was both authorized by law and reasonably intended to further the attorney’s official duties.