Fighting Fire with Fire: Private Attorneys Using the Same Investigative Techniques as Government Attorneys: The Ethical and Legal Considerations for Attorneys Conducting Investigations

As any litigator knows, cases are won or lost on the facts. Effective factual development and investigation are crucial to the success of any case. But lawyers are often faced with legal and ethical dilemmas concerning the investigative techniques they and their investigators want to use. This is particularly true in criminal cases, where discovery is extremely limited. One of the thorniest issues is the use of deception and other surreptitious techniques to gather information. While such tactics have long been the bread and butter of investigations led by government attorneys, ethics opinions and statutes often draw a distinction between what is proper conduct for a government attorney and what a private attorney can do. This Article examines the legal and ethical considerations New York lawyers face when using the exact same techniques relied on by government lawyers, including deception, secret audio recordings, video surveillance, computer data analysis, document gathering, and witness interviews. Also considered are the significant advantages the government enjoys from numerous statutory exceptions that allow the government to use techniques to gather information that private attorneys are prohibited from using.

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