Certified Legal Professional (CLP) Practice Exam

Is the attorney subject to discipline for obtaining an admission from D through a private investigator?

1. No, because Attorney was following P's instructions

2. No, because the statement obtained was evidence that D's allegations were unfounded

3. Yes, because Attorney should have interviewed D personally

4. Yes, because Attorney instructed Inv to interview D

The correct answer is: Yes, because Attorney instructed Inv to interview D

The rationale for why the attorney is subject to discipline in this scenario is based on the ethical obligations attorneys have regarding the integrity of their communication and the conduct of investigations. When attorneys engage a private investigator to interview a party, it can raise ethical concerns, particularly if that party is represented by counsel or if the investigator conveys the message that the attorney is not directly involved. Instructing an investigator to conduct interviews can lead to situations where the rights of the person being interviewed are overlooked, especially if they are not informed of their right to have their attorney present during such an interaction. Furthermore, attorneys are generally expected to communicate with represented parties only through their counsel, if applicable, which adds another layer of ethical scrutiny to the use of a private investigator. This course of action may undermine the integrity of the legal process, as it could be perceived as circumventing the proper channels of communication and engagement that are expected in a fair legal practice. Hence, the attorney's decision to have the investigator conduct the interview directly leads to potential disciplinary action against the attorney for failing to uphold these ethical standards in legal practice.