MARYLAND STATE BAR ASSOCIATION, INC.
COMMITTEE ON ETHICS
ETHICS DOCKET NO. 2006-02
Whether providing false information to investigated entities for the purpose of assessing a complaint under anti-discrimination laws violate the Rules of Professional Conduct.
You state that you are an attorney with a non-profit organization which investigates private and public entities for compliance with anti-discrimination laws. Your role with the organization includes coordinating investigations (commonly referred to as “tests”) to uncover and remedy discrimination. Your employer contracts with private persons to serve as “testers.” The testing methods include devising personal, professional and financial profiles for the testers to present in the contact with tested entities. Profiles may or may not be reflective of the tester’s actual characteristics; generally, however, the profiles are created by the test coordinator and are not reflective of the tester’s actual being.
The purpose of investigations utilizing testers include educational reports, outreach or litigation. In the litigation context, the tester may act as a witness or as a plaintiff for a bono fide complainant. In the litigation context, the true facts relating to the tester’s identity and actual profile are disclosed to the court and litigants.
You have asked if your role in coordinating civil rights tests, by devising false profiles for contract testers for presentation to investigated entities, that could lead to legal action, could give rise to a violation of Rule 4, or any other Rule of Professional Conduct.
Rule 4.1 of the Maryland Rules of Professional Conduct, in pertinent part, provides:
(a) In the course of representing a client a lawyer shall not knowingly:
(1) make a false statement of material fact or law to a third person; or
(2) fail to disclose a material fact when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client.
The comment to the Rule on Misrepresentation states: “[1] A lawyer is required to be truthful when dealing with others on a client’s behalf, but generally has no affirmative duty to inform an opposing party of relevant facts. A misrepresentation can occur if the lawyer incorporates or affirms a statement of another person that the lawyer knows is false. Misrepresentations can also occur by partially true but misleading statements or omissions that are the equivalent of affirmative false statements. For dishonest conduct that does not amount to a false statement or for misrepresentations by a lawyer other than in the course of representing a client, see Rule 8.4.”
Rule 8.4 of the Maryland Rules of Professional Conduct, in pertinent part, provides:
It is professional misconduct for a lawyer to:
(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;
(d) engage in conduct that is prejudicial to the administration of justice.
The use of “testers” is well recognized as a valuable tool in connection with the enforcement of perceived violations of the civil rights legislation. See, for example, Havens Realty Corporation v. Coleman, 455 U.S. 363 (1982); Filling an Enforcement Void: Using Testers to Uncover and Remedy Discrimination in Hiring for Lower-Skilled, Entry-Level Jobs, 26 U. Mich. J.L. Reform 403 (1992-1993); U.S. Equal Opportunity Commission, EEOC Notice No. 915.002 (May 22, 1996). “Testers” have been accorded “standing” to assert violations of discrimination laws even though the “tester” had no intention to buy or rent a home or accept employment. Havens Realty Corporation v. Coleman, supra; EEOC Notice No. 915.002, supra. To the extent that your “testers” lack actual standing (or will not be used as plaintiffs) to assert a violation of the discrimination laws but are used as witnesses who posed as individuals who had standing`, we assume that they might be used as witnesses in a proceeding. In such case, you must disclose to the court and opposing counsel the true profile of the tester. Rule 4.1(a)(1), (2) Hazard & Hodes, The Law of Lawyering § 37.3; see also, Ausherman v. Bank of America Corp., 212 F.Supp. 2d 435, 446 (Md. 2002).