Can I Be Disciplined for My Investigator’s Questionable Conduct?

Perhaps. A lawyer who knowingly uses an investigator or other third party to engage in conduct that the rules would forbid the lawyer from engaging in faces the risk of discipline. It is not uncommon for a lawyer to hire an investigator to surreptitiously gather evidence. However, the lawyer must not dispatch the investigator to engage in conduct that would otherwise be unethical for a lawyer. This could occur if the lawyer engages an investigator knowing that the investigator will (1) make a false statement of material fact to a third person, or (2) communicate with a person represented by counsel in the matter in question. The Kentucky Supreme Court publicly reprimanded a lawyer who, while representing a client in a wrongful termination case, used an invetigation firm to interview directly the client’s former employer See Bracher v. Kentucky Bar Ass’n, Ky., No. 2009-SC-000358-KB (Sep. 9, 2009). In that case, the Kentucky lawyer hired Documented Reference Check, a company that contacted the client’s former employer to see what the company had to say about the client. The Kentucky Supreme Court found that in so doing, the lawyer violated Kentucky Rule of Professional Conduct 4.2. Much the same result could occur in Louisiana. Louisiana Rule 4.1(a) prohibits a lawyer from  “knowingly” making “a false statement of material fact or law to a third person.”  Louisiana Rule 4.2(a) prohibits a lawyer from communicating “about the subject of the representation with . . . a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order.” Louisiana Rule 8.4(a) prohibits a lawyer from violating or attempt to violate the rules . . . through the acts of another.” See also Louisiana Rule 5.3.