Can a lawyer use an investigator's pretextual conversation with a represented opposing party as evidence, and can purely visual surveillance be used?

Plain-English summary

A lawyer for the employer and workers' compensation carrier hires a private investigator to surveil a represented claimant, instructing the investigator not to speak with the claimant. The investigator disregards the instruction and, using a pretext (posing as interested in a neighboring motel property), gets the claimant to say he is repairing the property from storm damage. The opinion addresses whether the lawyer may use the investigator's testimony about that conversation, and separately whether the visual observations may be used.

The opinion concludes the lawyer may not proffer the conversation evidence without disclosure. Rule 4.2(a) bars a lawyer from communicating about the subject of the representation with a person the lawyer knows is represented, absent consent or legal authorization, and under Rule 5.3 a lawyer may not do through an agent what the rules prohibit the lawyer from doing directly. The committee declines to opine on admissibility, but concludes that to discourage unauthorized agent contacts and protect the client-lawyer relationship, the lawyer may not proffer the communication evidence, even if the lawyer made a reasonable effort to prevent the contact, unless the lawyer makes full disclosure of the source to opposing counsel and the court before proffering it, citing Rule 3.3, Rule 4.1, and ABA Formal Opinion 95-396.

On the second question, the opinion concludes the lawyer may still offer the evidence from the investigator's visual observations, because visual observation is not a direct contact or communication with a represented person and does not violate Rule 4.2(a).

In practice

Under this opinion, the prohibition reaches an investigator's conversational contact with a represented party even when the lawyer told the investigator not to make contact; the remedy the opinion identifies is full disclosure of the source to opposing counsel and the court before any proffer of the conversation evidence. The opinion separates communication from observation: surveillance that produces only visual evidence falls outside Rule 4.2(a). The committee expressly declines to rule on whether the evidence is admissible, confining itself to the ethics question.

Common questions

Q: Can a lawyer use an investigator's conversation with a represented opposing party as evidence?

A: Not without disclosure. Opinion #1 concludes the lawyer may not proffer the communication evidence, even if the lawyer reasonably tried to prevent the contact, unless the lawyer first fully discloses the source to opposing counsel and the court, because Rule 5.3 bars doing through an agent what Rule 4.2 prohibits directly.

Q: Does it matter that the lawyer told the investigator not to talk to the claimant?

A: The opinion concludes the proffer restriction applies even where the lawyer made a reasonable effort to prevent the contact; the cure is full disclosure of the source before proffering the evidence.

Q: Can the lawyer use evidence from purely visual surveillance?

A: Yes. Opinion #2 concludes visual observation is not a direct contact or communication with a represented person and does not violate Rule 4.2(a).

Background and rules framework

The opinion interprets Rule 4.2(a) of the North Carolina Rules of Professional Conduct (communication with represented persons, the counterpart to Model Rule 4.2) together with Rule 5.3 (responsibilities regarding nonlawyer assistants, the counterpart to Model Rule 5.3), and references Rule 3.3 (candor) and Rule 4.1 (truthfulness) in setting the disclosure condition. It relies on ABA Formal Opinion 95-396 on communications with represented persons.

Citations and references

Rules of Professional Conduct:

• Model Rule 4.2 (communication with represented persons); N.C. Rule 4.2(a)
• Model Rule 5.3 (responsibilities regarding nonlawyer assistance); N.C. Rule 5.3
• Model Rule 3.3 (candor toward the tribunal); N.C. Rule 3.3; Rule 4.1 (truthfulness)

Other opinions cited:

• ABA Formal Opinion 95-396 (1995): communications with represented persons

See also

• ABA Formal Op. 95-396: The No-Contact Rule (4.2)
• ABA Formal Op. 07-445: Contacting Putative Class Members
• ABA Formal Op. 06-443: Contacting Inside Counsel

Source

• Landing page: https://www.ncbar.gov/for-lawyers/ethics-and-governing-rules/ethics-opinions/opinions/2003-formal-ethics-opinion-4/

Original opinion text

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

Editor's Note: This inquiry was originally submitted to the Ethics Committee in 2001. Since that time, four proposed responses to the inquiry were published for comment under the designation Proposed 2001 Formal Ethics Opinion 13 . Because of the delay in publication, the proposed opinion has been renumbered as a 2003 ethics opinion to reflect that citations in the opinion are to the Revised Rules of Professional Conduct (2003).

Inquiry #1:

Attorney represents the employer and the workers' compensation carrier in a workers' compensation case filed by Plaintiff, an injured employee. Attorney knows that Plaintiff is represented by legal counsel. Attorney hired a private investigator to watch Plaintiff to see if Plaintiff engaged in any physical activity indicating that he is not injured to the extent that he claims. Attorney instructed the private investigator not to engage Plaintiff in conversation. During the surveillance, the investigator ignored Attorney's instructions and engaged Plaintiff in a conversation about a motel property located next to Plaintiff's property. As a pretext for the communication, the investigator told Plaintiff he was interested in purchasing the motel property. During the conversation, Plaintiff stated that he was repairing the motel property from storm damage. The investigator's observations of Plaintiff during the remainder of the surveillance, without further verbal contact with Plaintiff, indicate that Plaintiff is physically able to work.

May Attorney proffer the private investigator's testimony about his conversation with Plaintiff as evidence in the workers' compensation trial?

Opinion #1:

Rule 4.2(a) of the Rules of Professional Conduct (2003) prohibits a lawyer from communicating about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter unless the other lawyer consents or the communication is authorized by law. A lawyer may not do through an agent that which the lawyer is prohibited by the Revised Rules of Professional Conduct (2003) from doing himself. See Rule 5.3.

The Ethics Committee declines to opine on the admissibility of evidence. However, to discourage unauthorized communications by an agent of a lawyer and to protect the client-lawyer relationship, the lawyer may not proffer the evidence of the communication with the represented person, even if the lawyer made a reasonable effort to prevent the contact, unless the lawyer makes full disclosure of the source of the information to opposing counsel and to the court prior to the proffer of the evidence. See Rule 3.3, Rule 4.1, and ABA Comm. On Ethics and Professional Responsibility, Formal Op. 95-396 (1995).

Inquiry #2:

If the information gained from the investigator's conversation with Plaintiff may not be used at trial, may Attorney still offer the evidence gained through the investigator's visual observations of Plaintiff?

Opinion #2:

Yes. Visual observation is not a direct contact or communication with a represented person and does not violate Rule 4.2(a).