relevant or that won’t be supported by the evidence Is There A Good Purpose Exception to Deception? o Generally, no . But consider the lack of consistency between these two cases. o Apple Corps., Ltd v. International Collectors Society [CB 735] Apple and other IP owners of The Beatles trademarks filed a lawsuit against International Collectors Society (a producer of stamps) seeking to enjoin unauthorized reproductions of likenesses of the Beatles on stamps and a consent injunction was entered. Plaintiffs’ counsel, believing that the injunction was being violated, hired investigators to contact the stamp producer and pose as consumers. The court found that the investigators didn’t violate Rule 4.1 or Rule 8.4(c). The court, citing Professor Green’s expert declaration, noted: “The prevailing understanding in the legal profession is that a public or private lawyer’s use of an undercover investigator to detect ongoing violations of the law isn’t ethically proscribed, especially where it would be difficult to discover the violations by other means .” In a limited number of jurisdictions, allowed for undercover operations Not expressly exempted but won’t do anything about it o In re Gotti [CB 736–37] Gotti represented chiropractors and suspected that a company was using people who lacked medical training to evaluate insurance claims. He called the company pretending to be a chiropractor and then a doctor. The court found that Gotti violated Oregon’s Rule 8.4(c), and did distinguish the Rule’s application with respect to government and nongovernment lawyers. Although government lawyers can use deception, nongovernment lawyers can’t ; lawyer’s can’t lie to save a life (Rule 8.4). S OCIAL M EDIA [CB 739–40] In social media, the governing mantra is “you can watch, but you cannot deceive.” o You can reach out and look at jurors but you cannot have contact with them or tell them that you are looking at them o You can communicate, but you cannot deceive o You cannot violate Rule 4.2 (the represented person rule) Lawyer can’t speak to a represented person; can only view what’s in the public domain 64
Ethics in Litigation Master Outline o You cannot communicate with a prohibited person – Rule 3.5 (judge, juror, prospective juror); Rule 4.2 (the represented person rule) Relationship to Rule 3.4(a) Can you tell your client to be careful about what they post online? Argument that a client has a duty to do this (Rule 1.4–duty to communicate). Can you say its ok for your client to delete social media posts? No. Destruction of evidence. Rule 3.4(a). You can’t answer a question about retention or destruction of evidence if you know the client will take that advice and destroy the evidence.
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