NACDL

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