LEGAL ETHICS FOR 

INVESTIGATIVE AGENTS? 

U.S. Department of Justice Professional 

Responsibility Advisory Office 

May 2003 

There are many circumstances in 

which attorney conduct rules will or may 

have implications for investigative agents. 

The rules themselves are written by and 

for lawyers and are used to regulate the 

practice of law, although they require that 

lawyers take steps to ensure that agents 

and other non-lawyers with whom they are 

working also abide by the rules. 

Therefore, investigators should familiarize 

themselves with the requirements of these 

rules for two good reasons: 1) to make 

sure evidence is not excluded; and 2) to 

protect the reputations of your agencies. 

This memorandum is intended to give you 

some familiarity with those rules of 

professional conduct that most often come 

into play during investigations and to aid 

you in avoiding pitfalls in your 

investigative work. 

I. What Are the Rules of Professional 

Conduct Anyway?

In order to practice law, a lawyer 

must be a member of a state bar. Each bar 

has adopted a set of rules that lawyers 

must follow. The American Bar 

Association is a voluntary organization of 

lawyers that drafts model rules, which the 

various state bar organizations often adopt, 

in whole or in part. The rules in each 

jurisdiction are therefore unique, although 

there are general principles that apply in 

every jurisdiction. Failure to follow those 

rules can result in sanctions to the lawyer, 

including revocation of the lawyer’s 

license to practice law. 

II. How Is It That Lawyer’s Rules 

Apply to Investigative Agents?

There are two general rules of 

professional conduct that can make a 

lawyer responsible for the conduct of an 

investigative agent with whom the lawyer 

is working. One rule (Rule 8.4(a)) states 

that it is professional misconduct for a 

lawyer to violate the rules of professional 

conduct through the acts of another. The 

second rule (Rule 5.3(c)) states that a 

lawyer is responsible for the conduct of a 

non-lawyer, if the lawyer supervised or 

ordered the conduct or “ratifies” the 

conduct or could have prevented or 

mitigated the effects of the conduct. 

While the government lawyers with whom 

you work do not directly supervise you, 

some judges may still hold them 

accountable for your conduct on account 

of the rules.1

 Oftentimes, the government 

lawyer will urge that, if a court finds a rule 

violation, any sanction be against the 

lawyer, not the case; but the court has 

discretion and sometimes does prohibit the 

lawyer from using evidence obtained by 

an agent in violation of the rules. In 

addition, the cases differ about when a 

lawyer “ratifies” the conduct of an agent 

or other non-lawyer. This issue comes up 

at trial when a defendant moves to have 

evidence excluded on the ground that the 

use of the evidence obtained by an agent 

in violation of a rule constitutes a 

ratification. The courts and legal 

authorities disagree on the answer to the 

question, but it is important for you to 

recognize it as an issue. 

 1

 Rule 5.3(b) states that a lawyer having 

direct supervisory power over a nonlawyer has to 

make reasonable efforts to ensure that the 

nonlawyer’s conduct is compatible with the 

professional obligations of the lawyer. 
There is also a more specific rule 

that requires that prosecutors take special 

precautions to make sure that investigative 

agents do not make pre-trial, out-of-court 

statements that would have a substantial 

likelihood of materially prejudicing a 

proceeding or that would have a 

substantial likelihood of heightening 

public condemnation of the accused (Rule 

3.8(f)). 

 When investigative agents learn 

about all the different requirements of the 

attorney conduct rules, they sometimes 

argue that investigators should conduct 

their investigations totally independently 

of the lawyer and in this way avoid the 

constraints of the attorney conduct rules. 

As a practical matter, given the necessary 

involvement of attorneys in issuing grand 

jury subpoenas, seeking wiretap orders, 

and in other techniques used in 

investigating complex federal crimes, it 

may be impossible for an attorney not to 

be involved at the investigative stage. 

Moreover, you should be aware that, no 

matter how independently the agents may 

try to operate, courts may still apply the 

attorney conduct rules, either when a 

lawyer is consulted on a legal issue, such 

as constitutional questions implicated in 

interviewing a suspect, or not, as when the 

lawyer simply tries to use the evidence. 

III. What Exactly Do The Most 

Important and Relevant Rules Provide?

For each of the following issues, 

you first should determine which rules of 

professional conduct apply and then 

examine the particular rule in question. 

You can do this by consulting an attorney 

in the governmental office who will 

handle the case. 

A. Contacts with Represented 

Persons.

Every jurisdiction has a provision 

providing generally that a lawyer may not 

communicate with a person the lawyer 

knows to be represented about the subject 

matter of the representation (ABA Model 

Rule is 4.2). There are exceptions to this 

rule. The rule in every jurisdiction permits 

such a communication with the consent of 

the person’s lawyer. The rule in every 

jurisdiction but two (Florida and Puerto 

Rico) contains language creating an 

exception for communications “authorized 

by law.” The rule on its own, or read in 

conjunction with other rules (such as Rule 

8.4(a) and 5.3(c) discussed earlier), would 

prohibit an agent working on a case with a 

lawyer from engaging in a communication 

when the lawyer could not. 

This rule raises many questions, 

and there are numerous cases deciding 

issues relating to it. The answers to the 

questions differ, depending on the 

applicable rule and the case law in the 

relevant jurisdiction. 

* How are you supposed to know

when an individual is represented by a 

lawyer? 

You have to pay attention 

to what the individual says 

on this issue. Also, where 

the individual has a lawyer 

on one case, for example, a 

state investigation of health 

care fraud, you probably 

should “know” that the 

individual is represented in 

your federal investigation 

of the same matter, unless 

there are good reasons not 

to think so, e.g., when a 
lawyer tells you he does not 

represent the individual in 

your investigation. 

* What if the individual has been 

represented in the past by a lawyer? 

This fact alone would not 

be enough to know that the 

individual is or is not 

represented. However, if 

the lawyer continues to 

work for the individual, 

then that is a fact to be 

considered. 

* If the “individual” is a 

corporation that employs a general 

counsel, does the general counsel 

necessarily represent that corporation on 

the matter you are investigating? 

Generally speaking, the fact 

that a corporation has a 

general counsel does not 

mean that the corporation is 

represented with respect to 

your investigation of a 

particular incident or 

practice. 

* Which persons in the 

corporation does the corporation’s 

attorney represent? 

The answer to this question 

is going to depend on 

where the case is or will be 

tried, or where the lawyers 

are members of the bar. 

The states vary, and in 

some jurisdictions, such as 

D.C., only employees who 

have the power to bind the 

corporation with respect to 

the representation itself are 

covered by the rule’s 

prohibition. In other states, 

however, even some lowlevel employees are 

considered to be 

represented by the 

corporation’s attorney. 

* Is a former employee considered 

to be represented by corporation’s 

attorney? 

In many jurisdictions, but 

not all, a former employee 

is not considered to be 

represented by the 

corporation’s attorney. 

That means that you are 

free to communicate with 

former employees about 

most things but not about 

“privileged matters.” 

* Is it necessary to ask every 

individual if he or she is represented? 

It usually is not necessary 

to ask every individual; that 

answer would change if 

you have reason to believe 

that someone is 

represented. In that case, 

you should inquire. 

* If a corporate employee has his 

own counsel who would permit you to 

communicate with the individual, do you 

also have to get the consent of the 

corporation’s attorney? 

In many jurisdictions, but 

not all, if a corporate 

employee has separate 

counsel, then you may 

properly communicate with 

the individual if you have 
the consent of that person’s 

separate counsel. 

* Can the individual consent to the 

communication or does the lawyer have to 

consent? 

No. Only the lawyer can 

consent. 

* Since the rule only prohibits 

communications about the subject matter 

of the representation, are you permitted to 

talk with the individual about a different 

but related subject? 

That depends on the 

relationship between the 

two. 

* What is considered a 

“communication”? (Is a letter a 

communication? Can you just listen?) 

Listening and writing or 

receiving a letter are 

communications. 

* Does the rule even apply before 

an individual is charged with a crime or a 

law suit is filed? 

The answer to this question 

varies, depending on which 

state’s rules apply and on 

the stage of the 

investigation. 

* When are you “authorized by 

law” to communicate with a represented 

person? 

This phrase has been 

interpreted to mean that 

you may communicate with 

a represented individual if a 

specific law, a court order, 

or a previous decision of 

the court in that jurisdiction 

would permit it. 

* If the rule applies to postindictment communications with 

represented persons, and the rules applies 

to agents who are working with lawyers, is 

it permissible for agents who arrest an 

indicted defendant to give Miranda 

warnings and get a statement from him? 

This is a difficult question, 

not susceptible to a short 

answer and included here 

so that you think about it. 

A few states’ rules 

specifically permit postarrest Mirandized

communications with 

represented individuals; on 

the other hand, at least one 

federal case suggests that it 

is impermissible. 

B. You Must Not Use a Method 

of Obtaining Evidence That Violates the 

Rights of Another Person.

Most jurisdictions have a rule or a 

number of rules that, read together, 

prohibit a lawyer and an agent working 

with a lawyer from obtaining evidence by 

violating the “legal rights” of another 

person (ABA Model Rule 4.4(a)). The 

“legal rights” of a third person include 

constitutional and statutory rights and 

rights recognized by case law, including 

privileges. For example, this rule has been 

used to prevent a lawyer from reviewing 

and copying psychiatric records of a 

litigant. It would prohibit you from asking 

questions if the answer would be 

privileged and the person you are asking 

does not have the power to waive the 
privilege. The most common way in 

which this rule would come into play is if, 

in the course of an investigation, you 

lawfully obtain information that is 

“privileged.” You may not always be able 

to determine in advance whether a 

document was intended to be privileged 

(and was inadvertently disclosed or was 

released by unauthorized persons), but 

there are some indicia that should put you 

on notice to ask some questions about the 

document. For example, if a document is 

on a lawyer’s stationery, is addressed to a 

client of the lawyer, and contains a notice 

such as “Confidential Attorney-Client 

Privileged Document” then you have some 

idea that there might be a claim that it is 

privileged. Before you read that document 

and before you integrate it into the file, it 

would be smart to find out how the 

document came into your possession. If 

the client waived the privilege (as, for 

example, a corporation may agree to do 

during an investigation), there is no reason 

not to read it. However, if the client did 

not waive the privilege, there are 

jurisdictions that would require you to 

return the document and also to refrain 

from using it. If you have not separated 

out such a document and it is later found 

to be privileged, you then would be hard 

pressed to establish that the information in 

it did not affect other parts of the 

investigation. Not every jurisdiction has 

such a rule, and so it is important to know 

what the applicable jurisdiction requires. 

C. Trial Publicity Rules

Every jurisdiction has a rule (either 

a rule of professional conduct or a court 

rule) that provides that a lawyer should not 

make a statement that a reasonable person 

would expect to be disseminated by means 

of public communication if the lawyer 

knows or should know that the statement 

will have a substantial likelihood of 

prejudicing an adjudicative proceeding 

(ABA Model Rule 3.6). Here, again, the 

rule applies to agents working with 

lawyers. There is another rule applicable 

to prosecutors (ABA Model Rule 3.8) that 

specifically requires the prosecutor to 

make efforts to prevent investigators and 

other law enforcement personnel from 

making statements outside the courtroom 

that the lawyer could not make. This 

second rule explains that prosecutors and 

agents properly may make statements that 

inform the public about the investigation if 

those statements serve a legitimate law 

enforcement purpose but should refrain 

from making statements outside the 

courtroom that “have a substantial 

likelihood of heightening public 

condemnation of the accused.” You 

should be aware that, in some 

jurisdictions, the rules do not permit an 

attorney (or an agent working with the 

attorney) to identify or display the items 

seized at the time of arrest or in 

connection with a search warrant. 

Since the publicity rules are 

designed to assure fair proceedings, it is 

not surprising that the penalty for a 

violation of the rules can result in reversal 

of a conviction. 

D. You Must Always Be Honest 

With the Court.

Every court requires those who 

appear before it to be honest (ABA Model 

Rule 3.3). Honesty means more than 

simply telling the truth. It may require 

you to make a statement, rather than leave 

the court with an erroneous impression. It 

may require you to correct the record in 

the court, even sometimes after a case has 

been closed. While you may know that 

the legal authorities hold sacrosanct the 
attorney-client relationship -- that is in part 

the reason for prohibiting a lawyer from 

disclosing the confidences of a client -- 

you may not know that in many 

jurisdictions a duty of candor to the court 

trumps even the a duty of confidentiality 

to a client. This rule is particularly 

exacting when the government lawyer is 

the only one presenting evidence to the 

court, that is, when involved in an ex parte

proceeding. 

 You may be surprised to learn that 

the candor rule applies whenever the 

government lawyer, through you, supplies 

information to the court, such as when you 

prepare an affidavit that is filed with the 

court. If the affidavit does not tell the 

whole story, then the case could suffer 

consequences. Candor issues arise in 

many different circumstances. Here are 

some examples: 

– where a confidential informant 

identifies herself while on the stand 

and under oath with a name 

supplied by your agency but that is 

not her real name. 

– where an affidavit in support of 

a wiretap does not contain a 

complete picture of previous 

methods tried and failed and 

alternative options for the 

government to obtain the 

information without the wiretap. 

– where, after testifying in a 

deposition, a government witness 

discovers that the information 

provided in the deposition was 

incorrect. 

In each of these circumstances, 

both your cases and your reputation can 

suffer from the potential consequences of 

such non-disclosures. 

E. Practice of Law and 

Negotiation of Agreements

Every jurisdiction has its own 

definition of what constitutes the practice 

of law and provides that only those 

properly authorized may practice in that 

jurisdiction; some jurisdictions have 

criminal statutes prohibiting the 

unauthorized practice of law. We refer to 

such rules here because investigative 

agents who give advice to persons about 

possible violations of various laws, who 

assist in the preparation or interpretation 

of legal documents, or who “negotiate” 

criminal penalties may be engaged in the 

unauthorized practice of law. Only 

government lawyers may properly 

negotiate pleas of guilty, cases of civil 

settlement, or the granting of immunity. 

Agents who attempt to negotiate on behalf 

of the government not only may subject 

themselves to penalties, but they also may 

undermine the cases they are attempting to 

resolve. 

Reprinted with special permission 

of the DOJ Professional Responsibility 

Advisory Office, Claudia Flynn, Director.