Administering Ethical and Admissible Pretext Investigations

Gain an understanding of recommended guidelines for the best practices on various jurisdictions to avoid ethical drawbacks.

The professional responsibility rules governing lawyers, including the actions of their agents, prohibit deceptive behavior in the course of their professional conduct. Failure to abide by the rules can result in professional discipline as well as evidence suppression and other sanctions in court actions. However, Rule 11 of the Federal Rules of Civil Procedure requires attorneys signing a pleading to certify that based on a reasonable inquiry, the factual contentions have or will have evidentiary support. Trademark, copyright and counterfeiting cases present special considerations, as it is often necessary to investigate the suspected conduct surreptitiously to catch the perpetrators red-handed before filing litigation. The tension between the nondeception ethics rules and conducting pretext investigations has not been resolved uniformly by the courts or disciplinary commissions around the country. This topic will explain how the rules have been applied in various jurisdictions, and will suggest guidelines on best practices to avoid ethical pitfalls. It will also include instructive war stories from the trenches by an experienced investigator.

Faculty

Ken Taylor

Com Laude USA

Robert W. Sacoff

Pattishall, McAuliffe, Newbury, Hilliard & Geraldson LLP