Thursday, May 19, 2011

IL lawyer in trouble for deception in the process of investigating compliance with the law

An Illinois Assistant Attorney General is the subject of an interesting ethical charge after allegedly using a "ruse” to gain evidence against a condominium project for lack of handicapped access.  He is accused of entering the premises under the false pretense that he was looking for a condo for his grandmother. More on the story here.  The complaint is available here.

This is an example of an old question: whether it is ethical to engage in some level of deception in order to confirm whether someone else is discriminating.

Assuming all the facts are true, the lawyer in question was, in fact, dishonest.  But he was dishonest "with good intentions" or for a good reason -- in order to find whether the other party was violating the law.

In part, the solution to the problem might be simply to let others do the investigating or, as in this case, the "testing."  Attorneys should stay out of it and wait until the information is gathered to intervene in the prosecution.  On the other hand, an attorney can't ask someone to do something the attorney can't do himself, so I am not sure where that leaves the attorney who needs to engage in some level of deception to gather the information.

Any thoughts?


  1. Doesn't the JMLS Fair Housing Clinic conduct "sting operations" wherein law students of different ethnicities express interest in apartments to test the landlords out for discrimination? I wonder what the implications are for that. Seems to me that this sort of thing should be treated similarly to when police go undercover. (Especially when the attorney in this case was engaged in a law-enforcement function).

  2. I do not know if the JMLS clinic does this but I do know there are cases out there on the subject. I suspect, as so often happens, that the results are mixed and may depend on the type of investigation. It would be interesting to do a search to see if the case law is consistent on the issue. Unfortunately, I do not know of any such study or articles that discuss the question. My understanding is that investigations for the purpose of determining discrimination in housing (for example) is looked at differently than other types of deception including deception by prosecutors (remember the Pautler case?)