I was just reading about an Arkansas lawyer who got into trouble in South Carolina when some investigators he hired in an intellectual property case visited various locations of the defendant, pretended to be customers, and video-recorded incriminating statements from them. Turns out that’s all prohibited under South Carolina ethics rules. The case teaches two lessons: first, there’s little wiggle room for lawyers playing investigator, and, just as important, the rules may vary depending on which state you are in.
In our usual “lawyer speak” used to describe conduct we’d call something else if mere mortals engaged in it, we call it “dissembling” or “pretexting” when one of us does it. As we used to say when teaching ethics, “the literature is rich” with entertaining stories of lawyers who got into trouble pretending to be something or someone else. One lawyer got into trouble when he and a colleague had an investigator pose as a lottery representative bringing a payoff to inveigle reluctant witnesses to leave an Indian reservation so that they could be served with a subpoena. Another guy (it seems these cases only involve male lawyers) got into trouble when he sent an investigator who posed as a journalist to interview a represented adverse party in a case.
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