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298

Communications With Represented Persons by Agents Acting as the "Alter Ego" of a Department Attorney

Department attorneys should be aware that agents and informants who communicate with represented persons as part of a law enforcement investigation may be deemed, for the purpose of the relevant professional responsibility rule, to be acting as the "alter ego" of the Department attorney supervising the investigation. In such a circumstance, the attorney's professional conduct rules may be imputed to the law enforcement agents or informants. In determining whether Department attorneys may be held responsible when an agent or informant communicates with a represented person, it is necessary to consider the principles reflected in ABA Model Rules 5.3 and 8.4. These rules embody the general proposition that a lawyer should be held responsible for the conduct and activities of agents acting on the lawyer's behalf or who are associated with the lawyer. Department attorneys should not be responsible for the misconduct of an agent working under their supervision unless the Department attorneys orders the conduct or, after becoming aware of the misconduct, approves or ratifies it.

The ABA has taken the position that the mere later use by a non-complicitous attorney of evidence obtained in violation of a rule of professional conduct does not constitute "ratification" of the misconduct and, therefore, the improperly-obtained evidence need not be suppressed. ABA Formal Op. 95-396. The reasoning appears to be that, since the lawyer did not violate his ethical duties, either because he was not a knowing participant in the agent's violation of the rule or because, after becoming aware of the misconduct, the attorney disapproved of it and took appropriate remedial steps to prevent further agent misconduct, the admission of the evidence then becomes a question of law that should not raise ethical implications for the lawyer. See In re Jenkins, 816 P.2d 335, 341 (Idaho 1991); People v. Gennings, 808 P.2d 839, 845 n.4 (Colo. 1991); North Carolina Ethics Op. RPC 152, 1992 WL 753134 (1992).

[updated May 2005]