Barry Temkin was a panelist on “Deceptive Investigative Techniques: Civil and Criminal Contexts,” a CLE webinar given by the New York County Lawyers Association (NYCLA) on January 9, 2024.
The Rules of Professional Conduct proclaim that lawyers should never resort to “conduct involving dishonesty, fraud, deceit, or misrepresentation” and a lawyer may not instruct others to engage in conduct that is ethically forbidden to lawyers. But criminal prosecutors routinely supervise undercover agents who misrepresent their identities, and a 2007 Ethics Opinion by the NYCLA Committee on Professional Ethics carves out two subject matters – intellectual property and civil rights investigations – in which a certain level of “pretexting” is considered acceptable and often necessary.
But does it make sense to permit misrepresentations in some areas of the law and not others? And why should prosecutors be given ethical leeway that is denied to defense lawyers in the same cases? It is difficult to navigate the ethical boundaries of permissible pretexting. This panel of practitioners and law professors will provide a lively, interactive discussion of this challenging and evolving area of the law.
- Barry Temkin, Mound Cotton Wollan & Greengrass LLP
- Catherine Foti, Morvillo Abramowitz Grand Iason & Anello PC
- James Kobak, Jr., Hughes Hubbard & Reed LLP
- Ellen Yaroshefsky, Hofstra University School of Law
See more information here.