Collecting Information Through Deception Should Not Be Undertaken Lightly
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 … Keep reading