The Ethics of Pretextual Investigations

An old question—whether an attorney may ethically assume a false persona in conducting a factual investigation—has been getting a lot of ethical ink lately.

In Colorado, most attorneys are familiar with the unfortunate case Mark Pautler (Peoplev. Pautler, 47 P.3d 1175 (Colo. 2002)).  On June 8th, 1998, Chief Deputy District Attorney Mark Pautler arrived at a grisly crime scene.  Three women lay murdered, their skulls cleaved by blows from a wood splitting maul.  Surrounded, the killer, William Neal, told authorities he would not surrender without speaking to legal counsel.  

Specifically, Neal asked to speak with a public defender, Daniel Plattner, who had previously represented him.  Plattner, however, could not be found.   Wanting to keep Neal talking, Pautler impersonated a Public Defender, and ultimately Neal surrendered.  For this deception, Pautler was correctly disciplined by the Colorado Supreme Court.

Few of us are likely to find ourselves in Mark Pautler’s circumstances.  However, attorneys often engage private investigators for whom deception is an investigatory staple.  Indeed, because wrongdoing is rarely committed in broad daylight, pretextual investigations are a stock technique employed by law enforcement officials.

Attorneys, however, are bound by several ethics rules which proscribe the use of pretext, and require that attorneys who employ private investigators conscribe their conduct to the Rules of Professional Conduct.   An understanding of these rules, and their application to the engagement of private investigators, is essential lest an attorney unwittingly find herself in the same unhappy legal position as Deputy District Attorney Pautler, where the use of a P.I. could easily become a disciplinary pie in the face.

For more than you ever wanted to know about how to safely navigate these tricky ethical waters, click here.