Part II of this Article briefly sketches the overall ethical framework under the ABA Model Rules and the ABA Model Code of Professional Responsibility, including the proscription on deceit and misrepresentation in Model Rule 8.4 and the ban on attorney contact with represented adverse parties in Model Rule 4.2. Part Ill describes the jurisdictions that have declined to create status-based exceptions to Model Rule 8.4, and the nationwide uproar created when the Oregon Supreme Court initially refused to permit undercover investigations involving any deception— including investigations by law enforcement personnel. That Part will also trace the subsequent adoption of a new rule in Oregon, which now permits all attorneys, regardless of public or private status, to supervise investigations involving deceit, provided that there is evidence of underlying unlawful conduct. Part IV describes the development of status-based exceptions, which have authorized government lawyers to supervise undercover criminal investigations and have permitted plaintiffs' lawyers to dispatch testers in intellectual property and civil rights cases. Part V explains efforts by various state bars to reconcile the conflict between the literal language of the Model Rules and the common practice, in which lawyers indeed have participated in undercover investigations involving trickery and deception. Part VI argues that status-based distinctions have outlived their purpose and should be reconsidered. Finally, Part VII suggests a number of conduct-based factors that should be used to analyze the conduct of all lawyers, regardless of an attomey's status or nature of the client's substantive legal claim.
Douglas R. Richmond, Drunk in the Serbonian Bog: Intoxicated Drivers' Deaths as Insurance Accidents, 32 SEATTLE U. L. REV. 83 (2008).