Investigative Deceit

Abstract

Is it ever ethical for a lawyer to ask or assist another person to lie on behalf of a client? Despite ethical rules categorically banning both personal and vicarious deceit, prosecutors routinely supervise police officers and informants who use deceit in investigating drug and sex offenses, organized crime, and terrorism. May defense lawyers make use of investigative deceit in criminal investigations? In this Essay, the Author examines this issue, the ethical rules bearing on it, and the recent trend in a number of jurisdictions allowing the use of investigative deceit by the defense. Drawing on his participation in a series of roundtable discussions sponsored by the Criminal Justice Section of the American Bar Association, the Author canvasses the various arguments that are marshaled both for and against allowing criminal defense lawyers to use investigative deceit.

Keywords: Investigative Deceit, Legal Ethics, Criminal Defense Attorneys, Lying, ABA Model Rules of Professional Conduct, Legal Ethics (Oregon), Legal Ethics (Wisconsin)

JEL Classification: K14