Ethics Opinion 323

Misrepresentation by an Attorney Employed by a Government Agency as Part of Official Duties

Lawyers employed by government agencies who act in a non-representational official capacity in a manner they reasonably believe to be authorized by law do not violate 规则8.4 if, in the course of their employment, they make misrepresentations that are reasonably intended to further the conduct of their official duties.

Applicable 规则

• 规则8.4 (Misconduct)

调查

The Committee has received an inquiry on a matter relating to the obligation of an attorney under 规则8.4(c). We are asked to determine whether attorneys who are employed by a national intelligence agency violate the 规则 of 教授essional 气孔导度uct if they engage in 欺诈, 欺骗, 或在其非代表性的公务过程中失实陈述.

讨论

规则8.4(c) of the 规则 of 教授essional Responsibility makes it professional misconduct for a lawyer to “engage in conduct involving 欺诈, 欺骗, or misrepresentation.” This prohibition applies to attorneys in whatever capacity they are acting—it is not limited to conduct occurring during the representation of a client and is, 因此, 表面上适用于靠谱的滚球平台在非代表情况下的行为. 看到 ABA 正式的Op. No. 336(1974)(靠谱的滚球平台在任何时候都必须遵守适用的纪律规则).¹

禁止虚假陈述将会, 因此, facially apply to attorneys conducting certain activities that are part of their official duties as officers or employees of the United States when the attorneys are employed in an intelligence or national security capacity. 因此, though the inquirer asked specifically about misrepresentations made by intelligence officers acting in their official capacity as authorized by law, the principles enunciated in this opinion are equally applicable to other governmental officers who are attorneys and whose duties require the making of misrepresentations as authorized by law as part of their official duties.

Such employees may, on occasion, be required to act 欺骗fully in the conduct of their official duties on behalf of the United States, as authorized by law. 这很容易, for example, to imagine attorneys whose work for the CIA might require their personal clandestine work and falsification of their identity, employment status, or fidelity to the United States. We are confronted with the question whether such misrepresentations run afoul of 规则8.4’s anti-欺骗 prohibition.²

基于三个原因，我们得出结论，规则8.4不禁止上述性质的行为.

First, our conclusion is premised on our understanding of the purposes for which 规则8.4 was adopted. 禁止从事“涉及不诚实”的行为, 欺诈, 欺骗, or misrepresentation” applies, in our view, 只允许对靠谱的滚球平台是否适合从事法律工作提出质疑的行为. The Comments to 规则8.4 discuss why the current version discarded earlier references to a prohibition on conduct involving “moral turpitude” (as the conduct that had been proscribed was referred to in our former Code of 教授essional Responsibility). 评论[1]解释了这个有点古老的公式，

可以被解释为包括一些涉及个人道德问题的罪行吗, 比如通奸和类似的罪行, 与适合从事法律工作没有特别的联系. 尽管靠谱的滚球平台对整个刑法负有个人责任, a lawyer should be professionally answerable only for offenses that indicate lack of those characteristics relevant to law practice.

D.C. 规则8.4, Comment [1]; see also In re White, 815 P.2d 1257 (Or. 1991) (concluding that Rule applies to conduct in violation of criminal law if it “reflects adversely on the lawyer’s honesty, 在其他方面是否值得信赖或是否适合担任靠谱的滚球平台”).

因此, in rejecting the formulation of “moral turpitude” and substituting the current anti-欺骗 formulation, the District of Columbia Court of Appeals has indicated its intention to limit the scope of 规则8.4 to conduct which indicates that an attorney lacks the character required for bar membership. As the Comments elaborate, this may include “violence, 不诚实, breach of trust, 或者严重干涉司法的.” D.C. 规则8.4, Comment [1].³ 但, 很明显, 例如，它并不包括所有的欺骗行为, 靠谱的滚球平台不应因犯通奸罪而受到专业处分, 或者谎称靠谱的滚球平台没空参加社交活动.

基于对规则8的理解.4, in our judgment the category of conduct proscribed by the Rule does not include misrepresentations made in the course of official conduct as an employee of an agency of the United States if the attorney reasonably believes that the conduct in question is authorized by law. An attorney’s professional competence and ability are not called into question by service in our intelligence or national security agencies in conformance with legal authorization, nor is it called into question by the use of effective covert means to achieve legitimate national security goals. Cf. Apple Corps Ltd. v. International Collectors Society, 15 F. 增刊. 2d 456, 476 (D.N.J. 1998) (concluding that investigator’s and tester’s misrepresentation of identity is not a misrepresentation of “such gravity as to raise questions as to a person’s fitness to be a lawyer”). 因此，我们不相信规则8.4(c) is intended to reach lawful, authorized official conduct, 即使这种行为有欺骗的成分.

第二个, our conclusion in this regard is buttressed by an analogous provision of the 规则 and its construction within this jurisdiction. 规则4.2 prohibits certain communications between a lawyer and an opposing party who is represented by counsel. 本司法管辖区已将本规则解释为允许合法的执法活动. 因此, our Commentary says that:

This Rule is not intended to enlarge or restrict the law enforcement activities of the United States or the District of Columbia which are authorized and permissible under the Constitution and the laws of the United States or the District of Columbia. 规则4的“法律授权”附带条款.第2(a)条旨在允许根据本法有效的政府行为.

规则4.2, Comment [8].⁴

The Virginia Standing Committee on Legal Ethics recently recognized the parallel between law enforcement and intelligence activity in an opinion that is consistent with our views. 在弗吉尼亚州. Legal Ethics Opinion 1738 (2000), the Virginia Standing Committee considered whether the ethical rule prohibiting non-consensual tape recording then in effect in Virginia applied to law enforcement undercover activities. 弗吉尼亚常务委员会的结论是没有. 在弗吉尼亚州. Legal Ethics Opinion 1765 (2003), the Virginia Standing Committee then considered whether the policies animating the exception for law enforcement undercover activities expressed in Opinion 1738 also authorized the use of non-consensual tape recording and other covert activities by attorneys working for a federal intelligence agency. Reasoning by analogy to its earlier decision concerning law enforcement undercover activities, the Committee agreed that covert intelligence activities also serve “important and judicially-sanctioned social policies.” Accordingly Opinion 1765 concluded that “when an attorney employed by the federal government uses lawful methods such as the use of ‘alias identities’ and non-consensual tape-recording, 作为他的情报或秘密活动的一部分, those methods cannot be seen as reflecting adversely on his fitness to practice law; 因此 such conduct will not violate the prohibition in 规则8.4(c).“这一推理对本委员会同样具有说服力.

To be sure, 规则8.第4条没有像第4条那样的“法律授权”附带条件.2, 而且没有这样的条款授权在情报中欺骗, national security, or other foreign representational context might be construed as indicating that such conduct is not permitted. Nonetheless, we agree with Virginia that the treatment of law enforcement activity is instructive of the proper treatment of intelligence activity. 更好的结构是查看规则4的注释[8].2 as expressing a general approval of lawful undercover activity by government agents and the failure to mention the myriad ways in which the issue might arise simply reflects the drafters’ focus on the more immediate issue of law enforcement activity that was before them. We do not think that the Court of Appeals intended to authorize legitimate law enforcement undercover activity while proscribing covert activity in aid of our national security; we would not impute so illogical an intent to the drafters absent far stronger evidence.

第三，“《靠谱的足球滚球平台》是理性准则. They should be interpreted with reference to the purposes of legal representation and of the law itself.” D.C. 规则, Scope, Comment [1]. Some activities conducted on behalf of the United States necessarily involve circumstances where disclosure of one’s identity or purpose would be inappropriate – and, 事实上, potentially dangerous. We do not think that the 规则 of 教授essional 气孔导度uct require lawyers to choose between their personal safety or compliance with the law, on the one hand,⁵ 另一方面是维持他们的靠谱的滚球平台执照. 看到 犹他州靠谱的滚球平台道德咨询委员会Op. No. 02-05 (2002) (relying on “rule of reasons” provision to conclude that government attorneys’ “lawful participation in a lawful government operation” does not violate 规则8.4 if 欺骗 is “required in the successful furtherance” of the undercover or covert operation).

基于上述几个理由，我们深信第8条的反欺骗条款.不禁止靠谱的滚球平台歪曲其身份, employment or even allegiance to the United States if such misrepresentations are made in support of covert activity on behalf of the United States and are duly authorized by law.⁶

最后，我们强调这种意见的范围很窄. It applies only to misrepresentations made in the course of official conduct when the employee (while acting in a non-representational capacity, 看到上 n.1)合理地相信适用法律授权该虚假陈述. It is not blanket permission for an attorneys employed by government agencies to misrepresent themselves. Nor does it authorize misrepresentation when a countervailing legal duty to give truthful answers applies. 因此, for example, false testimony under oath in a United States court or before the Congress is prohibited, see In re Abrams, 689 A.2d 6 (D.C. 1997) (en banc), notwithstanding any countervailing intelligence or national security justification. 和, 当然, 这一意见不允许出于非官方原因进行欺骗, or where an attorney could not, objectively, 有合理的信念，适用法律授权的行为.

With that limitation, our conclusion is as follows: Lawyers employed by government agencies who act in a non-representational official capacity in a manner they reasonably believe to be authorized by law do not violate 规则8.4 if, in the course of their employment, they make misrepresentations that are reasonably intended to further the conduct of their official duties.

调查没有.: 01-11-25
Adopted: 29 March 2004
Published: 30 March 2004

1. This opinion applies only to the conduct of attorneys acting in a non-representational capacity. 它没有处理规则4下可能适用的要求.1(与客户端通信)，或规则4.3 (dealing, on behalf of clients, (无代表政党), inter alia, prohibits attorneys from making a false statement of material fact to a third party “in the course of representing a client.”
2. 规则8.第4(c)条禁止靠谱的滚球平台从事“涉及不诚实”的行为, 欺诈, 欺骗, or misrepresentation.当然，“欺诈”是由《靠谱的滚球平台》单独定义的. 看到维.C. 规则 of 教授. 气孔导度uct, Terminology (defining “欺诈” and “欺诈ulent” as “conduct having a purpose to deceive”). 为方便起见，我们参考规则8.4(c) as the anti-欺骗 provision, while recognizing that the scope of the prohibition may depend upon a close analysis of the meaning of each of the four related prohibitions.
3. In March 2003, the Virginia Supreme Court made this connection explicit by amending the Virginia version of 规则8.4(c) to prohibit “不诚实, 欺诈, 欺骗 or misrepresentation which reflects adversely on a lawyer’s fitness to practice law.” Va. R. 教授. 气孔导度. 8.4(c).
4. Some other jurisdictions have construed this provision to preclude law enforcement agents, 按照靠谱的滚球平台的指示行事的, from conducting covert, 针对由靠谱的滚球平台代理的个人的秘密行动. Cf. In re Gatti, 8 P.3d 966(或. 2000), overruled, Or. DR 1-102(D) & Or. 正式的Op. 2003-173.
5. In some circumstances, federal law affirmatively prohibits disclosure of information relating to the identity of covert agents, for example. 看,e.g., 50 U.S.C. § 421.
6. 本委员会缺乏准确识别的专门知识, for example, 哪些秘密活动是法律授权的. 此外, 这样的列举将超出我们的章程, which ordinarily limits our opinions to interpretations of the District of Columbia 规则 of 教授essional 气孔导度uct. We emphasize, 然而, that for conduct to come within the safe-harbor of this opinion the lawyer must reasonably believe that the conduct in question was both authorized by law and reasonably intended to further the attorney’s official duties.