Washington Lawyer

Legal Ethics: Misrepresentation by an Attorney Employed by a Government Agency as Part of Official Duties

From Washington Lawyer, May 2004

Opinion 323
Misrepresentation by an Attorney Employed by a Government Agency as Part of Official Duties

(The May 2004 “Speaking of Ethics” column centered on Opinion 323, which in turn made substantial recourse to Rule 8.4 (Misconduct) and analogously utilized Rule 4.2 (Communication Between Lawyer and Opposing Party) . Opinion 323, which had as its prime context officially sanctioned deceit as part of national security operations, viewed such misrepresentation as permitted and not within the intended scope of Rule 8.4.)

. . . .

The Committee has received an inquiry on a matter relating to the obligation of an attorney under Rule 8.4(c). We are asked to determine whether attorneys who are employed by a national intelligence agency violate the Rules of Professional Conduct if they engage in fraud, deceit, or misrepresentation in the course of their non-representational official duties.

. . . .

Rule 8.4(c) of the Rules of Professional Responsibility makes it professional misconduct for a lawyer to “engage in conduct involving fraud, deceit, or misrepresentation.” This prohibition applies to attorneys in whatever capacity they are acting—it is not limited to conduct occurring during the representation of a client and is, therefore, facially applicable to the conduct of attorneys in a non-representational context. …

The prohibition on misrepresentation would, therefore, facially apply to attorneys conducting certain activities that are part of their official duties as officers or employees of the United States when the attorneys are employed in an intelligence or national security capacity. … (T)he principles enunciated in this opinion are equally applicable to other governmental officers who are attorneys and whose duties require the making of misrepresentations as authorized by law as part of their official duties.

. . . . We are confronted with the question whether such misrepresentations run afoul of Rule 8.4’s anti-deceit prohibition.

For three reasons, we conclude that Rule 8.4 does not prohibit conduct of the nature described.

First, our conclusion is premised on our understanding of the purposes for which Rule 8.4 was adopted. The prohibition against engaging in conduct “involving dishonesty, fraud, deceit, or misrepresentation” applies, in our view, only to conduct that calls into question a lawyer’s suitability to practice law. The Comments to Rule 8.4 discuss why the current version discarded earlier references to a prohibition on conduct involving “moral turpitude” (as the conduct that had been proscribed was referred to in our former Code of Professional Responsibility). Comment [1] explains that this somewhat archaic formulation, can be construed to include offenses concerning some matters of personal morality, such as adultery and comparable offenses, that have no specific connection to fitness for the practice of law. Although a lawyer is personally answerable to the entire criminal law, a lawyer should be professionally answerable only for offenses that indicate lack of those characteristics relevant to law practice.

D.C. Rule 8.4, Comment [1]…

Thus, …the District of Columbia Court of Appeals has indicated its intention to limit the scope of Rule 8.4 to conduct which indicates that an attorney lacks the character required for bar membership. As the Comments elaborate, this may include “violence, dishonesty, breach of trust, or serious interference with the administration of justice.” D.C. Rule 8.4, Comment [1]. But, clearly, it does not encompass all acts of deceit—for example, a lawyer is not to be disciplined professionally for committing adultery, or lying about the lawyer’s availability for a social engagement.

Given this understanding of Rule 8.4, in our judgment the category of conduct proscribed by the Rule does not include misrepresentations made in the course of official conduct as an employee of an agency of the United States if the attorney reasonably believes that the conduct in question is authorized by law. An attorney’s professional competence and ability are not called into question by service in our intelligence or national security agencies in conformance with legal authorization, nor is it called into question by the use of effective covert means to achieve legitimate national security goals. … As a consequence, we do not believe that Rule 8.4(c) is intended to reach lawful, authorized official conduct, even if there is a deceitful component to that conduct.

Second, our conclusion in this regard is buttressed by an analogous provision of the Rules and its construction within this jurisdiction. Rule 4.2 prohibits certain communications between a lawyer and an opposing party who is represented by counsel. This jurisdiction has construed the Rule to permit lawful law enforcement activity. Thus, our Commentary says that:

This Rule is not intended to enlarge or restrict the law enforcement activities of the United States or the District of Columbia which are authorized and permissible under the Constitution and the laws of the United States or the District of Columbia. The “authorized by law” proviso to Rule 4.2(a) is intended to permit government conduct that is valid under this law.
Rule 4.2, Comment [8].

The Virginia Standing Committee on Legal Ethics recently recognized the parallel between law enforcement and intelligence activity in an opinion that is consistent with our
views. …

To be sure, Rule 8.4 does not have an “authorized by law” proviso, like that in Rule 4.2, and the absence of such a provision authorizing deceit in the intelligence, national security, or other foreign representational context might be construed as indicating that such conduct is not permitted. Nonetheless, we agree with Virginia that the treatment of law enforcement activity is instructive of the proper treatment of intelligence activity. A better construction is to view Comment [8] to Rule 4.2 as expressing a general approval of lawful undercover activity by government agents and the failure to mention the myriad ways in which the issue might arise simply reflects the drafters’ focus on the more immediate issue of law enforcement activity that was before them. We do not think that the Court of Appeals intended to authorize legitimate law enforcement undercover activity while proscribing covert activity in aid of our national security; we would not impute so illogical an intent to the drafters absent far stronger evidence.

Third, “[t]he Rules of Professional Conduct are rules of reason. They should be interpreted with reference to the purposes of legal representation and of the law itself.” D.C. Rules, Scope, Comment [1]. Some activities conducted on behalf of the United States necessarily involve circumstances where disclosure of one’s identity or purpose would be inappropriate – and, indeed, potentially dangerous. We do not think that the Rules of Professional Conduct require lawyers to choose between their personal safety or compliance with the law, on the one hand, and maintenance of their bar licenses, on the other. …

For these several reasons we are convinced that the anti-deceit provisions of Rule 8.4 do not prohibit attorneys from misrepresenting their identity, employment or even allegiance to the United States if such misrepresentations are made in support of covert activity on behalf of the United States and are duly authorized by law.

Finally, we emphasize the narrow scope of this opinion. It applies only to misrepresentations made in the course of official conduct when the employee (while acting in a non-representational capacity …), reasonably believes that applicable law authorizes the misrepresentations. It is not blanket permission for an attorneys employed by government agencies to misrepresent themselves. Nor does it authorize misrepresentation when a countervailing legal duty to give truthful answers applies. Thus, for example, false testimony under oath in a United States court or before the Congress is prohibited … notwithstanding any countervailing intelligence or national security justification. And, of course, this opinion does not authorize deceit for non-official reasons, or where an attorney could not, objectively, have a reasonable belief that applicable law authorizes the actions in question.

Inquiry No. 01-11-25
Adopted: March 29, 2004