Pursuant to Section 26 of Rule 9 of the Rules of the Supreme Court, the
Board has been asked for a Formal Opinion as to the propriety of
Disciplinary Counsel interviewing Respondent's wife, secretary, clerk,
investigator, employee, partner, associate, or member of a professional
corporation, either before formal charges are filed, or after, with or without
a subpoena, without the knowledge and consent of the Respondent, when
there has been a complaint filed against the Respondent attorney.
It appears to this Committee that the question raised falls within an interpretation of DR
1-102(A)(4) which states: "A lawyer shall not engage in conduct involving dishonesty,
fraud, deceit, or misrepresentation." Once charges have been filed against a Respondent
attorney, notice would not be required to be given to such Respondent regarding the
persons to be interviewed; however, such investigation, while conducted within the realm
of confidentiality, to the full extent that the same may be maintained, shall be conducted
with no deceit or misrepresentation. The investigating counsel does owe to the
Respondent's wife, secretary, partner, associate, etc., a high degree of candor on an
interview. If an investigatory interview was held with any such persons holding a
confidential relationship with the Respondent attorney, it is incumbent upon such
investigator to reveal the thrust of this interrogation, and failure so to do would be
deceitful or misrepresentative, and in violation of Disciplinary Rule set forth above.
EC 1-5 places upon the attorney the onus of maintaining high standards of professional
conduct and encouragement of fellow attorneys to do likewise. Further, such theme is
recited throughout other ethical considerations, to wit: 7-1; 9-2; 9-6.
The Code of Professional Responsibility places upon the practicing attorney a higher
degree of personal conduct and an avoidance of appearances of dishonesty, fraud, deceit
or misrepresentation and, certainly, Counsel for the Board of Professional Responsibility
of the Supreme Court in all of their professional conduct would be held to the highest
standards in such regard.
This 18th day of June , 1982.
William R. Willis, Chairman
F. Evans Harvill
John R. Rucker, Senator
APPROVED AND ADOPTED BY THE BOARD