These summaries were prepared by McGuireWoods LLP lawyer Thomas E. Spahn. They are based on the letter opinions issued by the Virginia State Bar. Any editorial comments reflect Mr. Spahn's current personal views, and not the opinions of the Virginia State Bar, McGuireWoods or its clients. 
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27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

Virginia State Bar staff lawyers may direct and supervise nonlawyer bar investigators, outside investigators, or volunteers who "engage in covert investigative techniques in the investigation of the unauthorized practice of law in any case in which no other reasonable alternative is available to obtain information against the person engaging in the unauthorized practice of law." Specifically, they may undertake a covert investigation of a paralegal's reported preparation of wills and powers of attorney without a lawyer's direct supervision (which would amount to a criminal act). The Bar worried that "because of the absence of witnesses who can testify or produce substantive evidence," the Bar might not be able to undertake enforcement actions against the paralegal. The Bar proposed to direct a nonlawyer to contact the paralegal "under the pretext of wanting a will and/or POA prepared, collect and pay for these services, and report back the results." Lawyers directing and supervising such a covert operation would not violate Virginia Rule 8.4(c), because such behavior would not reflect adversely on "the lawyer's fitness to practice law." Virginia's unique Comment [1] to its Rule 5.3 specifically approves "traditionally permissible activity" such as law enforcement investigations and housing discrimination tests. Earlier LEO opinions have also recognized a "law enforcement" exception to Rule 8.4(c)'s general prohibition on deception.

Copyright 2000, Thomas E. Spahn