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By Kathryn Keneally, Mark Mutterperl
White-Collar Crime columns.
Ethical Considerations in Seeking the Truth
To represent a client, an attorney must investigate the facts. To make
use of the facts, an attorney must develop evidence. In many instances,
those in possession of the facts may not be readily forthcoming with
counsel for a potentially adverse party. In some instances, a potential
witness may be motivated to refuse to speak with counsel, or even to
lie, when under other circumstances the same witness might respond
directly to a total stranger. And in other situations, the goal of
defense counsel may be to catch the witness in a lie — which again may
more likely take place when the witness is speaking with someone that
the witness does not know to be counsel for a potential adversary.
Under what circumstances, if any, may counsel engage in subterfuge to
obtain the facts and evidence needed to build a case? Recent,
high-profile cases, such as that involving Hewlett-Packard, concerning
“pretexting” and alleged illegal w
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