While Rules 4.1(a) and 8.4(c) of the Massachusetts Rules of Professional Conduct prohibit attorneys from making false statements to third parties and/or engaging in conduct that is dishonest, fraudulent or involves misrepresentations, attorneys (and/or their agents) can use deception to act as “testers” to determine, for instance, if people are engaging in discriminatory or other illegal conduct. Nevertheless, as the plaintiff’s attorneys in Leysock v. Forest Laboratories, Inc. recently found out, getting creative in seeking to dupe people into providing information to bolster a claim can come back to bite you – hard.
In Leysock, the plaintiff’s attorneys at Milberg LLP “engaged in an elaborate scheme of deceptive conduct in order to obtain information from physicians about their prescribing practices.” They did this to garner evidence for a qui tam action they wanted to pursue. More specifically, the attorneys hired a doctor to pretend that he was conducting research through online surveys submitted to other physicians, without disclosing that the information gathered would be used to bolster the allegations in a complaint.
After the defendants learned about this, they moved for sanctions and sought dismissal because the allegations in the Complaint hinged on information that had been culled from the foregoing ruse. In deciding that Motion, Judge Saylor first noted that “[l]awyers may not avoid the rules by hiring others to perform prohibited acts, and are responsible for the wrongful acts of those that they knowingly assist or direct.” The Judge then noted that because the conduct at issue plainly fell within the express prohibitions of the Rules of Professional Conduct, the key issue was “whether the conduct of the attorneys [was] subject to any investigative exception to those rules.” In that regard, Judge Saylor described the parameters of a permissible testing exercise as follows:
“Testing” involves deception of a particular kind: investigators pose as members of the public interested in procuring housing or employment, in order to determine whether they are being treated differently based on their race or sex. Their aim is to reproduce an existing pattern of illegal conduct. Some private investigators whose aim is to uncover other civil wrongdoing, such as trademark infringement or breach of contract, similarly disguise their identity and purpose without running afoul of ethical rules.
In this case, Judge Saylor had no difficulty finding that the conduct of plaintiff’s counsel plainly was impermissible for a variety of reasons, including but not limited to the fact that it caused doctors to reveal confidential patient information. As a result, he allowed defendant’s motion and dismissed the case.
Some might feel that Leysock was an easy case, and would be unconcerned about making the same types of mistakes that the plaintiff’s counsel made. Nevertheless, in-house counsel and any other practitioners who are considering engaging in any sort of deception to obtain discovery should keep in mind this excerpt from the decision:
There is no bright line between permissible and impermissible conduct, and to some extent the question is one of degree.
So the next time you are considering “non-traditional” discovery, you may want to look carefully at what you intend to do before taking a leap.