Lawyer Speech, Investigative Deception, and the First Amendment

It seems unassailable that attorneys must refrain from deception or dishonesty of any kind as a condition of professional licensure. But this principle, one of the foundational norms of the legal profession, may well infringe upon First Amendment rights, at least in certain applications. In this Article, we confront the tension between an attorney’s expressive and associational rights and her professional duty of absolute honesty. We explain that the latter must yield to the former in the unique circumstances presented by undercover investigations, where attorneys work side-by-side with journalists, civil rights testers, political activists, and others who seek to expose information of profound public concern. Deception about the investigator’s identity or purpose is often necessary to obtain access to information that has been deliberately concealed from the public. That attorneys should be permitted to provide counsel, notwithstanding the deceptive element of the investigation, may seem like a surprising conclusion for a profession that pervasively regulates attorney speech and has long assumed that any kind of deception must be categorically off limits for lawyers. Nonetheless, a close examination of rapidly evolving First Amendment principles reveals that lawyers have a right to provide counsel, advice, and supervision to individuals and entities engaged in investigations – even the deceptive kind.

a. Associate Dean for Faculty Scholarship & Professor of Law, University of Denver Sturm College of Law.

b. Thompson G. Marsh Law Alumni Professor, University of Denver Sturm College of Law. The authors are grateful for many helpful comments and suggestions regarding earlier drafts of this Article from Enrique Armijo, Ashutosh Bhagwat, Marc Jonathan Blitz, Claudia Haupt, Genevieve Lakier, David Schwartz, and Alexander Tsesis. We also thank Ellen Giarratana and Garrett Kizer for their outstanding research support.

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