Can a lawyer employed by a federal intelligence agency use alias identities and non-consensual recording in authorized covert work without violating Rule 8.4(c)?
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This page answers the general question as of 2004. Ezel answers yours: whether it's allowed on your facts, under the current Virginia Rules of Professional Conduct, with citations.
Plain-English summary
A lawyer working for a federal intelligence agency asked whether lawful undercover methods used in the government's intelligence and investigative work, such as alias identities and non-consensual tape-recording, violate Rule 8.4(c). The committee had stayed the request while an amendment to Rule 8.4(c) was pending; on March 25, 2003, the Supreme Court of Virginia adopted a revised Rule 8.4(c) that limits the misconduct prohibition to dishonesty, fraud, deceit, or misrepresentation "which reflects adversely on the lawyer's fitness to practice law."
The committee revisits LEO 1738, which (following LEO 1217 and Gunter v. Virginia State Bar, 238 Va. 617 (1989)) generally barred non-consensual recording by lawyers but recognized exceptions for law enforcement, housing-discrimination testers, and lawyers who are crime victims, while noting the list was not exhaustive. The requester sought to extend the law-enforcement exception to federal intelligence work, which does not fit "law enforcement" (the CIA is statutorily barred from law enforcement, 50 U.S.C. section 403(d)(3)). The committee notes ABA Formal Opinion 01-422 reversed the ABA's earlier position against non-consensual recording, but declines to treat that reversal as superseding LEO 1738, because Gunter remains the controlling Virginia judicial authority, and 01-422 expressly addressed only recording, not misrepresentation of identity.
Applying LEO 1738's reasoning, the committee finds that lawful intelligence methods serve a social policy as important and judicially sanctioned as law-enforcement methods, and sees no reason to distinguish the two groups of government attorneys. Under the new Rule 8.4(c), the committee concludes that when a federally employed attorney uses lawful methods such as alias identities and non-consensual recording in intelligence or covert activity, that conduct cannot be seen as reflecting adversely on his fitness to practice, so it does not violate Rule 8.4(c). To the extent anything in the opinion contradicts LEO 1217, that opinion is overruled.
Currency note
This opinion was issued in 2004, applying the revised Rule 8.4(c) adopted in 2003. Virginia's Rule 8.4 and related authority may have changed since. Verify against current rules before relying on any specific provision mentioned here.
In practice
The opinion holds that, under the revised Rule 8.4(c), lawful undercover methods used by a federally employed lawyer in authorized intelligence or covert activity do not reflect adversely on the lawyer's fitness to practice and so do not violate the rule, extending the law-enforcement exception recognized in LEO 1738. The committee confines the conclusion to lawful methods used in authorized federal intelligence work and overrules LEO 1217 to the extent of any conflict.
Common questions
Q: Can a government intelligence lawyer use a false identity in undercover work without breaking Rule 8.4(c)?
A: Yes, under this opinion. The committee holds that lawful alias-identity and recording methods used in authorized intelligence work do not reflect adversely on the lawyer's fitness to practice, so they do not violate the revised Rule 8.4(c).
Q: Why did the law-enforcement exception not already cover intelligence work?
A: The committee notes intelligence agencies are not "law enforcement" (the CIA is statutorily barred from it, 50 U.S.C. section 403(d)(3)), so it extended LEO 1738's reasoning to intelligence and covert activity as an additional appropriate exception.
Q: Did the ABA's reversal on secret recording change Virginia's analysis?
A: No. The committee notes ABA Formal Op. 01-422 reversed the ABA's position but declines to follow it, because Gunter v. Virginia State Bar remains the controlling Virginia judicial authority and 01-422 addressed only recording.
Background and rules framework
The opinion interprets Rule 8.4(c) (Model Rule 8.4(c); dishonesty, fraud, deceit, or misrepresentation), as revised in 2003 to limit the prohibition to conduct reflecting adversely on the lawyer's fitness to practice. It builds on LEO 1738 (and LEO 1217) and Gunter v. Virginia State Bar, and discusses ABA Formal Opinion 01-422.
Citations and references
Rules of Professional Conduct:
- Model Rule 8.4(c) / Virginia Rule 8.4(c) (dishonesty, fraud, deceit, misrepresentation; revised 2003)
Statutes:
- 50 U.S.C. section 403(d)(3) (CIA statutorily barred from law-enforcement functions)
Cases:
- Gunter v. Virginia State Bar, 238 Va. 617 (1989), controlling Virginia authority on non-consensual recording by lawyers
Other opinions cited:
- Virginia LEO 1738 and LEO 1217: general bar on non-consensual recording and its exceptions; LEO 1217 overruled in part.
- ABA Formal Opinion 01-422: reverses ABA's prior position against non-consensual recording (former Formal Op. 337).
See also
Source
- Landing page: https://vsb.org/Site/about/rules-regulations/leo-opinions.aspx
- Original PDF: https://www.vsb.org/common/Uploaded%20files/LEOs/1765.pdf
Original opinion text
Reproduced from the official source for research purposes. The linked source is authoritative.
Approved by Supreme Court
February 6, 2004
Committee Opinion
June 13, 2003
LEGAL ETHICS OPINION 1765
WHETHER AN ATTORNEY WORKING FOR A
FEDERAL INTELLIGENCE AGENCY CAN
PERFORM UNDERCOVER WORK WITHOUT
VIOLATIONG RULE 8.4.
I am writing in response to your letter dated December 26, 2001, requesting an informal
advisory opinion from the Virginia State Bar Standing Committee on Legal Ethics
(“committee”). As you may recall, this committee stayed the issuance of an opinion in response
to your request as a proposed amendment to the pertinent ethics rule, 8.4 (c), was pending before
the Supreme Court of Virginia. On March 25, 2003, the Supreme Court of Virginia adopted a
revised Rule 8.4. Accordingly, this committee is now providing you with the response to your
request. For clarity, the former Rule 8.4 (c) was as follows:
It is professional misconduct for a lawyer to:..(c) engage in conduct involving dishonesty,
fraud, deceit or misrepresentation.
The newly adopted Rule 8.4(c) reads as follows:
It is professional misconduct for a lawyer to: ...(c) engage in conduct involving
dishonesty, fraud, deceit or misrepresentation which reflects adversely on the lawyer’s
fitness to practice law. (Emphasis added).
You have requested reconsideration of two prior legal ethics opinions 1217 and 1738. Each of
those opinions involved the tape-recording of conversations by attorneys, or by those at their
direction without consent of all parties to the conversations. In LEO 1738, this committee
reviewed the bright line prohibition against the non-consensual tape-recording by attorneys
presented in LEO 1217. The committee in LEO 1738 reviewed that conduct with regard to
former Rule 8.4(c)’s prohibition against “conduct involving dishonesty, fraud, deceit, or
misrepresentation” and with regard to Gunter v. Virginia State Bar, 238 Va. 617 (1989). Prior
legal ethics opinions have cited Gunter for the general proposition that “the mere fact that
particular conduct is not illegal does not mean that such conduct is ethical,” as well as for the
more specific proposition that just because an attorney may legally tape-record a particular
conversation does not necessarily mean he is permitted to do so under the ethics rules. See, LEO
1738. The committee opined that in most instances the prohibition established in 1217 should
apply; however, the committee identified three necessary exceptions. The first exception is
afforded to attorneys working in law enforcement. A second exception was specified for
housing discrimination testers. The third exception would be triggered by either the threat or
actual commission of criminal activity where the attorney is the victim. The committee makes a
final clarifying point in LEO 1738 that this list of exceptions was not necessarily an exhaustive
list; the opinion acknowledges that there may be “other factual situations in which the lawful
recording of a telephone conversation by a lawyer, or his or her agent, might be ethical.” The
opinion suggested that the committee would await a subsequent specific inquiry before
addressing any other possible scenarios.
Approved by Supreme Court
February 6, 2004
Committee Opinion
June 13, 2003
Your request for reconsideration of these prior opinions specifically seeks extension of the
1738 list of exceptions to include the various lawful activities performed by federal attorneys as
part of the federal government’s intelligence and/or investigative work. The exception created in
LEO 1738 for “law enforcement,” does not apply to all of these federal intelligence activities as,
for example, the CIA is by statute prohibited from engaging in law enforcement. See, 50 U.S.C.
§403(d)(3). In contrast, the activities you wish this committee to consider are those involved in
authorized intelligence or counterintelligence activities as well as “special activities,” also known
as “covert actions.”
The “law enforcement” exception identified in LEO 1738 was based on several points of
analysis. First, the opinion points out that a total ban on non-consensual tape-recording ignores
the fact that such recording is a “legitimate and effective investigative practice for law
enforcement.” Second, the opinion looks at the impact of banning such activity and predicts that
such a ban would hinder access to reliable information. Third, the committee opined that the ban
in Gunter should be limited to its facts as that case presented especially egregious activity by the
attorney involved, with such activity bearing little resemblance to legitimate law enforcement
conduct. Fourth, the committee expressed concern that if lawyers were not able to direct nonattorneys to do this sort of activity, then lawyers would be discouraged from supervising
investigators and law enforcement officers; the committee did not want to produce a chilling
effect on needed supervision. Weighing clarity of an outright prohibition as suggested in LEO
1217 against the benefit of allowing the tape-recording by law enforcement professionals, the
committee concluded that non-consensual recording, and other similar undercover techniques,
are “methods of gathering information in the course of investigating crimes or testing for
discrimination [that] are legal, long-established, and widely used for socially desirable ends.”
In applying the analysis found in LEO 1738 to your situation, the committee notes one
pertinent legal development since the issuance of that opinion. Specifically, the American Bar
Association (ABA) issued Formal Ethics Opinion 01-422, addressing non-consensual taperecording by attorneys. In that opinion, the ABA reverses its prior position, taken in Formal
Opinion 337, that such recording is unethical. In the new opinion, the ABA concludes that under
the ABA Model Rules of Professional Conduct, there is no blanket prohibition against an
attorney electronically recording a conversation without the knowledge of the other party or
parties to the conversation. LEO 1738 cites the now withdrawn Formal Opinion 337 in finding
support for the conclusion in LEO 1738 that the conduct is impermissible outside of certain
specific contexts. However, the committee does not see the ABA’s reversal as cause to
supersede the conclusions drawn in LEO 1738. LEO 1738 cites Gunter as primary authority for
the general tape-recording prohibition. The committee notes that while Formal Opinion 337,
which is cited within Gunter, has been withdrawn, Gunter remains the current judicial authority
regarding this issue in Virginia. Accordingly, with regard to the permissibility of tape-recording,
this committee opines that the ABA’s reversal on that question does not undermine the basis for
the committee’s conclusion in LEO 1738. With regard to other conduct at issue (such as alias
identities), the committee notes that Formal Ethics Opinion 01-422 delineates that it is
addressing exclusively the issue of tape-recording, and “leave[s] for another day the separate
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Approved by Supreme Court
February 6, 2004
Committee Opinion
June 13, 2003
question of when investigative practices involving misrepresentations of identity and purpose
nonetheless may be ethical.” Therefore, this committee will look primarily to the Virginia Rules
for Professional Conduct and prior opinions of this committee rather than the position of the
ABA in resolving your question.
While the majority of the discussion in LEO 1738 does focus on non-consensual taperecording, the opinion also applies the same analysis to other investigative techniques that may
involve deceit or misrepresentation, such as the undercover identities used by housing
discrimination testers. Thus, in resolving your question regarding intelligence and other related
activities, the committee believes that its analysis in that opinion is easily extended to the sort of
activities outlined in your request. The lawful methods used by intelligence professionals serve a
similarly “important and judicially-sanctioned social policy” as that served when those methods
are used by law enforcement professionals. The committee sees no reason to distinguish, for
purposes of permissibility of investigative techniques under the Rules of Professional Conduct,
between the activities of these two groups of government attorneys. As suggested by the closing
language of LEO 1738, the committee contemplated thatS there may be additional appropriate
exceptions to the strict interpretation of former 8.4(c); the committee agrees with the requester
that intelligence and covert activities of attorneys working for the federal government are an
appropriate exception under the new language of Rule 8.4(c), with its additional language
limiting prohibition only to such conduct that “reflects adversely on the lawyer’s fitness to
practice law.”. Accordingly, the committee opines 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).
To the extent that anything in this opinion is in contradiction to the language in LEO 1217, that
opinion is overruled.
This opinion is advisory only, based only on the facts you presented and not binding on any
court or tribunal.
Approved by Supreme Court
February 6, 2004
Committee Opinion
June 13, 2003
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