Can a bar's ethics counsel direct an investigator to pose as a client in a sting to catch someone engaged in the unauthorized practice of law?

Plain-English summary

The opinion addresses whether the lawyers who staff the Virginia State Bar's Standing Committee on Unauthorized Practice of Law may supervise an undercover or "sting" investigation. In the hypothetical, a former paralegal is suspected of preparing wills and powers of attorney for the public after her supervising lawyer died, but the complaint rests almost entirely on hearsay and old documents, no witnesses can substantiate the activity, and the committee cannot meet its burden of proof. To obtain evidence, staff counsel would direct a bar investigator or outside volunteer to contact the suspect under the pretext of wanting a will or power of attorney prepared, pay for the service, and report back.

The committee concludes that this does not violate the Rules of Professional Conduct. Rule 8.4(c) makes it misconduct to engage in dishonesty, fraud, deceit, or misrepresentation that reflects adversely on the lawyer's fitness, and Rule 8.4(a) bars a lawyer from violating the rules through the acts of another, such as a lay investigator. Rule 5.3(c)(1) makes a lawyer responsible for a nonlawyer's conduct the lawyer orders or ratifies. But the committee, relying on LEOs 1738 and 1765, applies a "law enforcement exception" to Rule 8.4(c) that the Supreme Court of Virginia has approved, and notes that Comment [1] to Rule 5.3 preserves traditionally permissible activity such as misrepresentation of one's role in a law-enforcement investigation or a housing-discrimination "test."

The committee reasons that the unauthorized practice of law is a criminal offense, that staff counsel are charged by statute with investigating such conduct, and that where a suspect accepts work only by word of mouth, posing as a prospective client may be the only viable means to discover the activity. It sees no principled distinction between approved undercover and "tester" investigations and a UPL investigation conducted by agents of a governmental agency charged by law with investigating criminal conduct. It concludes that staff counsel may direct covert techniques in any UPL case where no other reasonable alternative is available to obtain evidence.

In practice

Under the Virginia rules as they stood when the opinion issued, the committee holds that Virginia State Bar staff counsel may direct a bar investigator or outside volunteer to use covert, deceptive techniques, such as posing as a prospective client, to investigate the unauthorized practice of law, and that doing so does not violate Rule 8.4(c) (or Rule 8.4(a) and Rule 5.3(c)(1) through the investigator's acts), because the Supreme Court of Virginia has approved a law-enforcement exception to Rule 8.4(c). The opinion grounds this in the criminal nature of unauthorized practice and staff counsel's statutory investigative duty, and limits the holding to cases where no other reasonable alternative is available to obtain evidence. The opinion addresses the bar's own enforcement staff and government-agency investigations, not deception by lawyers in private civil practice.

Common questions

Q: Can a bar use an undercover sting to catch unauthorized practice of law?

A: The opinion concludes yes. It holds that bar staff counsel may direct a lay investigator or volunteer to pose as a prospective client to gather evidence of unauthorized practice, under a law-enforcement exception to Rule 8.4(c) that the Supreme Court of Virginia has approved.

Q: Doesn't Rule 8.4 bar lawyers from dishonesty and acting through others?

A: It does, but the opinion concludes the law-enforcement exception applies. It notes that Comment [1] to Rule 5.3 preserves traditionally permissible activity such as misrepresentation of one's role in a law-enforcement investigation or a housing-discrimination tester.

Q: When is covert investigation permitted in a UPL case?

A: The opinion concludes covert techniques are ethical in any UPL case where no other reasonable alternative is available to obtain information against the person engaged in unauthorized practice, given the criminal nature of the conduct and staff counsel's statutory duty to investigate.

Background and rules framework

The opinion interprets Rule 8.4(c) (Model Rule 8.4(c)), which makes dishonesty, fraud, deceit, or misrepresentation reflecting adversely on fitness professional misconduct; Rule 8.4(a) on violating the rules through the acts of another; and Rule 5.3(c)(1) (Model Rule 5.3) on a lawyer's responsibility for a nonlawyer's conduct the lawyer orders or ratifies, with Comment [1] preserving law-enforcement and tester misrepresentation. It relies on LEO 1738 (recording without a party's consent) and Supreme Court-approved LEO 1765 (government lawyer supervising undercover work), and on the criminal unauthorized-practice statute (Va. Code §54.1-3904) and the bar's investigative authority (Va. Code §54.1-3910).

Citations and references

Rules of Professional Conduct:

• Model Rule 8.4 / Va. Rule 8.4(a), (c) (misconduct through another; dishonesty reflecting on fitness)
• Model Rule 5.3 / Va. Rule 5.3(c)(1) and Comment [1] (responsibility for nonlawyer conduct; law-enforcement/tester exception)

Statutes:

• Va. Code §54.1-3904 (unauthorized practice of law; Class 1 misdemeanor)
• Va. Code §54.1-3910 (Virginia State Bar investigative authority)

Other opinions cited:

• Va. LEO 1738: deception in the search for truth; recording without consent
• Va. LEO 1765 (approved by the Supreme Court of Virginia, 2004): government lawyer supervising undercover work

See also

• VSB Ethics Op. 1852: Employment Limitations for Suspended/Revoked Lawyers
• VSB Ethics Op. 1856: Scope of Practice for a Foreign Lawyer in Virginia

Source

• Landing page: https://vsb.org/Site/about/rules-regulations/leo-opinions.aspx
• Original PDF: https://www.vsb.org/common/Uploaded%20files/LEOs/1845.pdf

Original opinion text

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

Committee Opinion
June 16, 2009
LEGAL ETHICS OPINION 1845

USE OF COVERT TACTICS BY THE VIRGINIA
STATE BAR IN UNAUTHORIZED PRACTICE
OF LAW INVESTIGATIONS.

In this hypothetical, “A” is a paralegal who worked for “Lawyer B” for twenty years until
“Lawyer B’s” death. Lawyer B, a solo practitioner, limits his practice to trust and estate work.
Through the years, under Lawyer B’s supervision, “A” became quite proficient in preparing wills
and powers of attorney for clients. In the process of assisting in the closing of the practice, “A”
collected and took with her forms that “Lawyer B” had used for preparing wills, advanced
medical directives and powers of attorney (“POAs”). “Lawyer B” practiced in a relatively small
community and both “Lawyer B” and “A” were known and highly regarded. “A” did not seek
new employment after “Lawyer B’s” practice was closed. Instead, over the ensuing years “A,”
through word of mouth, offered legal services to people she knew and to others who were
referred to her, by providing assistance in preparing wills, POAs, and advanced medical
directives—using the forms she had kept from “Lawyer B’s” practice. “A” did not, however,
advertise or publicly hold herself out as providing such services.
Recently, a circuit court clerk filed an unauthorized practice of law complaint with the Virginia
State Bar’s Standing Committee on Unauthorized Practice of Law (“UPL Committee”) against
“A” alleging that “A” has made a business of preparing wills and POAs and these wills are now
turning up years later as testators die and as wills are admitted to probate. Certain problems are
being discovered in how the documents were drafted and questions asked about the
circumstances under which they were prepared. The clerk’s information is based almost
exclusively on hearsay and documents the clerk has seen admitted to probate.
Proving the allegations in the complaint is extremely difficult. No one involved, either those
presenting the wills or attorneys or court personnel reviewing the wills, has ever had any direct
contact with “A” or was present when she drafted the documents, which are now years old. “A”
has not responded to the complaint 1 and no one can/will provide any information as to whether
“A” is still engaged in this activity or substantiate what, if anything, she has done in the past.
Also, no source exists to contradict the circumstantial evidence that “A” indeed engaged in what
is alleged. The evidence on the face of the complaint is insufficient for the UPL Committee to
make a finding of unauthorized practice or to make a referral to the Office of the Attorney
General or a Commonwealth’s Attorney. Moreover, because of the absence of witnesses who
can testify or produce substantive evidence, 2 there is no way that the UPL Committee can meet
its burden of proof in an enforcement proceeding against “A.” 3
Furthermore, the UPL Committee has reason to believe that “A” continues to provide these
services to the public to their detriment. To obtain evidence that “A” is providing legal services
to the public, Ethics Counsel and/or Assistant Ethics Counsel who staff the UPL Committee
1

Engaging in the unauthorized practice of law (“UPL”) is a criminal offense, a Class 1 Misdemeanor. Va. Code
§54.1-3904 (Repl. Vol. 2005). Therefore, the defendant in this case, “A,” can refuse to respond to the UPL
complaint or a subpoena if doing so would violate her privilege against self-incrimination.
2
By the time a document is admitted to probate, it is not uncommon for witnesses to its execution to be unavailable.
3
In a civil proceeding, the Commonwealth must prove that the defendant engaged in UPL by a “preponderance of
the evidence.” In criminal proceedings, the burden of proof is “beyond a reasonable doubt.”

Committee Opinion
June 16, 2009
(“staff counsel”) need to direct a Virginia State Bar (“VSB”) investigator or some other willing
outside volunteer to contact “A” under the pretext of wanting a will and/or POA prepared, collect
and pay for these services, and report back the results. In effect, staff counsel and the
investigator propose to employ an “undercover”/ “sting” operation to catch “A” engaging in
unlawful or criminal activity.
QUESTIONS REGARDING ETHICAL CONDUCT
1. Is it ethical for staff to direct a bar investigator or other outside investigator/volunteer
to engage in covert investigative techniques in the investigation of the unauthorized
practice of law described in this hypothetical?
2. Is it ethical for the staff counsel to direct a bar investigator or other outside
investigator/volunteer to engage in covert investigative techniques in the investigation of
the unauthorized practice of law in any case in which similar circumstances of lack of
witness cooperation, lack of substantive evidence and significant harm to “clients” exist
and no other reasonable alternative is available for obtaining information against the
person engaging in unauthorized practice?
APPLICABLE RULES & OPINIONS
The appropriate and controlling rules relative to this hypothetical are Rules 5.3(c)(1), which
outlines a lawyer’s responsibilities regarding non-lawyer assistants, Rule 8.4 (a), which prohibits
a lawyer from violating or attempting to violate a rule of conduct through the actions of another,
and Rule 8.4(c), which deals with lawyer misconduct that reflects adversely on the lawyer’s
fitness to practice law. Also pertinent to the Committee’s analysis are LEO 1738 (attorney
participation in electronic recording without consent of party being recorded), and Supreme
Court LEO 1765 (government attorney performing undercover work without violating 8.4).
ANALYSIS OF THE QUESTIONS PRESENTED
This opinion addresses the ethical propriety of staff counsel to the UPL Committee supervising
an undercover investigation to determine whether someone is engaging in the unauthorized
practice of law. The lawyers are not conducting the covert investigation but have directed a lay
staff investigator, regularly employed by the VSB, to perform the covert investigation. The
tactics or techniques used by the investigator would involve some form of deception, i.e.,
misrepresentation of identity or purpose, in order to catch the suspect engaging in conduct that is
unlawful or criminal.
In answering the first question, this Committee believes, based upon the facts presented in the
hypothetical, that the use of an undercover or “sting” operation by a lay investigator, under the
direction of Ethics Counsel and Assistant Ethics Counsel, does not violate the Rules of
Professional Conduct.
Rule 8.4 (c) of the Rules of Professional Conduct states in pertinent part that “it is professional
misconduct for a lawyer . . . to engage in conduct involving dishonesty, fraud, deceit or

Committee Opinion
June 16, 2009
misrepresentation which reflects adversely on the lawyer’s fitness to practice law. . . .” (emphasis
added). 4 Rule 8.4 (a) prohibits a lawyer from violating or attempting to violate a rule of conduct
through the actions of another, i.e., a lay investigator.
Rule 5.3 (c)(1) also applies to the Committee’s analysis, holding that a lawyer is ethically
responsible for a non-lawyer’s conduct that violates the Rules of Professional Conduct if the
lawyer orders or, with the knowledge of the specific conduct, ratifies it. Comment [1] to Rule
5.3 notes: “[a]t the same time, however, the Rule is not intended to preclude traditionally
permissible activity such as misrepresentation by a non-lawyer of one’s role in a law
enforcement investigation or a housing discrimination “test.”
The Committee observes that one who engages in the unauthorized practice of law is
committing a criminal act. 5 Through the State Bar Act of 1938, the General Assembly created
the VSB as the administrative agency charged with investigating and reporting violations of rules
and regulations adopted by the Supreme Court of Virginia. 6 The Unauthorized Practice Rules
(“UPRs”) are adopted by the Supreme Court of Virginia and published in Part 6, Section I of the
Rules of Court. Staff counsel are required by the Rules of Court to investigate written
complaints of the unauthorized practice of law and report to the Committee the status of the
investigation within 180 days from when the complaint is filed. Upon review of all the evidence
presented, the UPL Committee then determines the appropriate disposition of each complaint. 7
In short, staff counsel are charged by law with the duty to investigate conduct that is unlawful
or criminal and the UPL Committee reviews and evaluates the evidence gathered in that
investigation and makes a determination as to what further action to take or not against the
respondent. Since, in this hypothetical, “A” has made it known by word of mouth that she is
available to prepare legal instruments and is accepting legal work by referral, the only viable
means to discover “A’s” criminal or illegal activity is to have an investigator pose as a
prospective client interested in obtaining a legal instrument.
It is generally known and very well accepted that law enforcement authorities, including
government lawyers, are authorized to conduct or supervise undercover operations using
deception to gather information about criminal conduct. 8 This Committee has opined that
4

The Committee notes that the italicized language was added to the rule by an amendment effective March 25,
2003.
5
See note 1, supra.
6
Va. Code §54.1-3910 (Repl. Vol. 2005).
7
Id. at para. 10 (h)(ii). Possible dispositions include: dismissal, dismissal with caution, dismissal with letter
agreement to cease and desist, referral to the Office of the Attorney General for a writ quo warranto, or referral to a
Commonwealth’s Attorney for criminal prosecution under the misdemeanor statute.
8
As this Committee observed in Legal Ethics Op. 1738:
[T]he courts have recognized that deception in the search for truth is justified in some
circumstances in both the law enforcement and private realms. Sorrells v. United States, 287 U.S.
435, 441 (1932) (artifice and stratagem are “frequently essential to the enforcement of the law” in
order to “reveal criminal design; to expose illicit traffic, the prohibited publication, the fraudulent
use of the mails, the illegal conspiracy, or other offenses, and thus to disclose the would-be
violators to the law”); Hampton v. United States, 425 U.S. 484, 495 n.7 (1976) (Powell, J.,
concurring) (stating that contraband offenses “are so difficult to detect in the absence of

Committee Opinion
June 16, 2009
lawyers involved in undercover activity or who supervise such activity are not acting unethically
despite the prohibition against conduct involving fraud, dishonesty, deceit or misrepresentation
reflecting adversely on the lawyer’s fitness to practice law. 9
The Committee has also stated that although undercover investigations involve some elements
of misrepresentation and deceit, the conduct does not reflect adversely on the fitness or character
of the lawyer directing or supervising a lawful criminal investigation. 10 The Supreme Court of
Virginia has specifically approved a legal ethics opinion that recognizes a “law enforcement”
exception to Rule 8.4 (c). 11 This “law enforcement exception” includes civil investigations using
“testors” conducted under the supervision of government lawyers charged with investigation and
prosecuting cases of housing discrimination. 12 This Committee sees no principled distinction to
be drawn between these types of investigations, in which undercover operations have been
approved, and the UPL investigation presented in this hypothetical in which lawyers and agents
of a governmental agency are charged by law with the investigation of conduct that is criminal or
illegal.
Therefore, in answer to the second question, it is the Committee’s opinion that it is ethical for
staff counsel of the VSB to direct a bar investigator or other outside investigator/volunteer to
engage in covert investigative techniques in the investigation of the unauthorized practice of law
in any case in which no other reasonable alternative is available to obtain information against the
person engaging in the unauthorized practice of law.
This opinion is advisory only and not binding on any court or tribunal.

undercover Government involvement”); United States v. Russell, 411 U.S. 423, 432 (1973)
(asserting that infiltration of drug rings, the only practicable means of detecting unlawful conduct,
is a recognized and permissible means of investigation); Hamilton v. Miller, 477 F.2d 908, 909
n.1 (10th Cir. 1973) (“it would be difficult indeed to prove discrimination in housing without [the
tester's] means of gathering evidence”).
9
Virginia Legal Ethics Ops. 1738, 1765; Rule 8.4 (c), supra.
10
Id.
11
See Virginia Legal Ethics Op. 1765 (app’d by the Supreme Court of Virginia on February 6, 2004).
12
Virginia Legal Ethics Op. 1738; cmt [1], Rule 5.3.