When can an Oregon lawyer advise, supervise, or take part in a covert investigation that uses misrepresentation, and can the lawyer go undercover personally?

Plain-English summary

The opinion analyzes three scenarios against Oregon RPC 8.4, which makes dishonesty, fraud, deceit, or misrepresentation that reflects adversely on fitness to practice professional misconduct under 8.4(a)(3), and provides a safe harbor in 8.4(b) for advising or supervising lawful covert activity in the investigation of violations of civil or criminal law or constitutional rights. "Covert activity" means an effort to obtain information on unlawful activity through misrepresentation or subterfuge, available only when the lawyer in good faith believes there is a reasonable possibility that unlawful activity has occurred, is occurring, or will occur.

In Scenario 1, a lawyer in a workers' compensation case counsels the client to have a friend pose as someone from the employer's personnel office to question a reluctant witness, where there is no evidence of fraud, negligence, or any safety violation. The opinion concludes the 8.4(b) safe harbor does not apply because there are no violations of civil law, criminal law, or constitutional rights to investigate; the lawyer may not advise or supervise covert activity there. In Scenario 2, a lawyer suspecting a fraudulent medical report personally calls the doctor under a fictitious name to try to get an admission. The opinion concludes 8.4(b) permits a lawyer only to advise and supervise covert activity, not to participate directly, so the lawyer's personal undercover conduct violates the rule.

In Scenario 3, a deputy district attorney advises police to hire someone to pose as a drug customer based on neighbors' reports of increased foot traffic. The opinion concludes the safe harbor requires both an honest subjective belief in a possibility of unlawful activity and some rational basis for that belief, but the review of rationality is minimal, a bare-rationality standard rather than probable cause or reasonable suspicion. Assuming the prosecutor could articulate a rational basis from her knowledge and experience, the foot-traffic information made drug activity a reasonable possibility, and her advice would not subject her to discipline under the rule.

In practice

This opinion was issued in 2005, after Oregon's adoption of the current Rules of Professional Conduct, so it interprets the current rule numbering, but it is more than five years old and readers should verify the current rule text before relying on specifics. The opinion holds that the 8.4(b) safe harbor is bounded three ways: it reaches only investigations of actual legal violations or constitutional-rights violations, it covers advising and supervising but not the lawyer's own direct deception, and it requires a good-faith belief in a reasonable possibility of unlawful activity tested by minimal, bare-rationality review. Per the opinion, a lawyer outside those bounds, like the workers' compensation lawyer with no suspected violation or the lawyer personally going undercover, falls back under the general prohibition in Oregon RPC 8.4(a)(3).

Common questions

Q: When does Oregon RPC 8.4(b) let a lawyer be involved in a covert investigation?

A: The opinion concludes the safe harbor applies only when the lawyer in good faith believes there is a reasonable possibility that unlawful activity, a violation of civil or criminal law or constitutional rights, has occurred, is occurring, or will occur.

Q: Can a lawyer who suspects fraud go undercover personally?

A: No. The opinion concludes Oregon RPC 8.4(b) permits a lawyer only to advise and supervise covert activity, not to participate directly, so a lawyer using a fictitious identity in the investigation violates the rule.

Q: Does the safe harbor protect investigating conduct where no legal violation is suspected?

A: No. In the workers' compensation scenario with no evidence of any wrongdoing, the opinion concludes there are no violations of civil law, criminal law, or constitutional rights to investigate, so the safe harbor does not apply.

Q: How strong must the lawyer's basis for suspecting unlawful activity be?

A: The opinion concludes the lawyer needs an honest belief plus some rational basis, but the rationality review is minimal, a bare-rationality standard, not probable cause or reasonable suspicion.

Background and rules framework

The opinion interprets Oregon RPC 8.4(a)(3) (dishonesty, fraud, deceit, or misrepresentation) and the Oregon-specific safe harbor in Oregon RPC 8.4(b) for advising or supervising lawful covert activity, corresponding to Model Rule 8.4. It traces 8.4(b) to the Oregon Supreme Court's decisions in In re Gatti and In re Ositis, which declined to recognize broader judicial exceptions for lawyer deception.

Citations and references

Rules of Professional Conduct:

• Oregon RPC 8.4(a)(3) / Model Rule 8.4 (dishonesty, fraud, deceit, or misrepresentation)
• Oregon RPC 8.4(b) (Oregon safe harbor for advising or supervising lawful covert activity)

Cases:

• In re Gatti, 330 Or 517, 8 P3d 966 (2000), deceit rules apply to all lawyers, including in undercover investigations
• In re Ositis, 333 Or 366, 40 P3d 500 (2002), lawyer disciplined for directing another's deception
• In re Brandsness, 299 Or 420, 702 P2d 1098 (1985); In re Porter, 320 Or 692, 890 P2d 1377 (1995)

See also

• OSB Ethics Op. 2005-156: Electronic Recording of Conversations
• OSB Ethics Op. 2005-161: Agency Investigator Contact With a Licensee
• OSB Ethics Op. 2005-131: Contacting an Adverse Expert in a Criminal Case

Source

• Landing page: https://www.osbar.org/ethics/toc.html
• Original PDF: https://www.osbar.org/_docs/ethics/2005-173.pdf