Can pretext investigations, utilizing fictitious identities and false pretenses, be reconciled with anti-deception rules?
Your client suspects infringement, counterfeiting, or violation of an injunction or settlement agreement, and wants to stop it by means of a civil action in federal court for an injunction and damages. To ascertain evidentiary support, an investigation is done to determine exactly what the adverse party is doing and selling, and confirm that infringing activities are taking place. Do you contact them directly? Pose as a customer? Not so fast. The ethical rules that govern lawyers' conduct prohibit lawyers from engaging in deceptive or fraudulent conduct, and from directly contacting those of adverse interest without their lawyers, or those unrepresented by lawyers.
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