Lawyers, Covert Activity, and Choice of Evils

Abstract

After discussing the origins of Model Rule 8.4(c), which purports to prohibit all deceit and misrepresentation, and states' recent amendments to the rule to accommodate lawyer involvement in some covert activity, Professor Fortune proposes a broad rule that would allow lawyers to supervise and actively participate in lawful investigations. As an alternative he proposes that states follow Virginia and qualify the rule against deceit by adding 'that reflects adversely on the person's fitness as a lawyer.' In this article, Professor Fortune discusses the concept of choice of evils in the context of deceit to further a societally-beneficial end.