Could an investigator's undisclosed recording of a witness affect the hiring lawyer under the ethics rules?

Short answer Yes. The opinion answered that Rule 4-8.4(a) and (c) implicated the lawyer even when the investigator was an independent contractor and the lawyer had not directed how statements were taken.
Bar
MOLEC
Issued
1995

Apply this to your situation

This page answers the general question as of 1995. Ask about yours and see what the current Missouri Rules of Professional Conduct say for your facts, with citations.

How much weight this carries: Under Missouri Supreme Court Rule 5.30, formal opinions are binding; informal opinions are advisory. Source.
About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked on this page) is the authoritative source for any reliance.

Plain-English summary

A lawyer hired an investigator as an independent contractor and did not direct how witness statements were taken. The investigator recorded a witness without telling the witness.

The opinion answered yes to whether this had implications for the lawyer under Rules 4-8.4(a) and (c). It gave no further explanation of the particular implication or sanction.

Currency note

This 1995 opinion predates Missouri's 2007 amendments to its Rules of Professional Conduct. An official reference note identifies July 1, 2007 amendments to Rules 4-1.9 and 4-1.10. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context and verify current rules before relying on it.

Common questions

Q: Did contractor status remove the lawyer-ethics issue?

A: No. The question assumed contractor status, and the opinion still answered yes under Rules 4-8.4(a) and (c).

Q: Did the opinion identify a specific sanction?

A: No. It cited the rules and gave no further analysis.

Background and rules framework

The opinion cited Missouri Rules 4-8.4(a) and (c) in response to a question about a hired investigator recording a witness without disclosure. It did not explain the rules further.

Citations and references

Rules of Professional Conduct:

  • Missouri Rule 4-8.4(a)
  • Missouri Rule 4-8.4(c)

See also

Source

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

QUESTION: If Attorney hires an investigator as an independent contractor and does not instruct the investigator on the manner of taking statements from witnesses, will it have implications for Attorney if the investigator tape records a statement without informing the witness that the conversation is being recorded? ANSWER: Yes, under Rule 4–8.4(a) and (c).

What do the rules say today, for your facts?

This opinion is from 1995. Ezel checks the current Missouri Rules of Professional Conduct against your situation and cites the rules it relies on.

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