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The Virginia State Bar‘s standing committee on unauthorized practice of law stopped conducting undercover investigations years ago out of concern that the practice might violate ethical constraints against deceit and misrepresentation. Now the Bar’s legal ethics committee has issued a formal opinion clearing the way for investigators once again to engage in sting operations when there is no other feasible way to investigate a complaint that a non-lawyer is practicing law. “This has been an issue for a long time because of situations in which people are engaging in the unlicensed practice of law and the witnesses aren’t willing to come forward, and there are other evidentiary problems,” said Barbara Balogh, assistant ethics counsel for the Virginia State Bar. That situation has been cropping up lately in investigations of non-lawyers holding themselves out as immigration attorneys, with victims who don’t want to come forward for fear of attracting the attention of immigration authorities, Balogh said. The committee’s opinion, adopted in June, posits the hypothetical example of a paralegal who worked with a trust and estates solo practitioner in a small town until the attorney’s death. Through word of mouth, the paralegal offers assistance in preparing wills and advanced medical directives using forms from the deceased attorney’s practice. Because the paralegal does not advertise those services, there’s no overt evidence of wrongdoing. Under the scenario, a court clerk files a complaint with the Bar alleging that the paralegal has been preparing wills and other documents, and that problems have been discovered in those documents years after they were filed. The evidence is based on hearsay, and no one involved can or will provide information as to what the paralegal has been doing. The committee also believes that the paralegal is still providing these services, to the detriment of the public. A simple solution would be to send investigators in posing as clients who want to do business with the suspect. But there’s a problem: The Virginia State Bar’s rules of professional conduct prohibit attorneys from “engaging in conduct involving dishonesty, fraud, deceit or misrepresentation.” A sting operation might conceivably run afoul of that proscription. The new ethics opinion sweeps that concern away, declaring that it is ethical for a Bar investigator or volunteer lawyer to go undercover to look into complaints of unauthorized practice of law when witnesses won’t cooperate or there’s no substantive evidence, and when there is significant harm to clients, as long as there is no other reasonable alternative to collecting the necessary evidence. Law enforcement agents regularly engage in covert investigations, and the Virginia State used to do the same until officials began to worry that bar attorneys might not enjoy the same privilege, Balogh said. Rather than risk ethics violations, the bar pulled the plug on its covert investigations. Similar questions had been circulating in the late 1990s. In 2000, the Oregon Supreme Court ruled that a lawyer who had directed law enforcement officers in an undercover operation had violated ethics rules by directing the officers to misrepresent themselves. Even with the protection of the new opinion allowing such investigations, Balogh expects stings to be used rarely. “It’s not something that will be used in everyday cases,” she said. “It will only be used in those cases where we are up against a wall.” Virginia State Bar officials surveyed the ethics policies of other state bars around the country as part of their review, focusing closely on the Florida Bar‘s rules. That state’s standing committee on unlicensed practice of law used to run undercover investigations but in 2000 it, too, stopped because of ethics concerns, said Lori Holcomb, the attorney in charge of the panel. “We started looking at it and asked, ‘Is this is a problem?’ ” she said. In 2006, the Florida Bar set out a series of prerequisites that must be met before staff attorneys or volunteers may go undercover. Since then, the bar has conducted only two covert investigations. “We do it as a last resort,” Holcomb said. Most complaints can be investigated by interviewing victims or the non-lawyer accused of practicing law, she noted. Still, but as in Virginia, immigration fraud cases tend to be some of the more difficult to investigate. The number of immigration fraud complaints received by the Virginia State Bar has remained fairly steady in recent years, Balogh said, although she couldn’t provide hard numbers. What’s changed is that the circumstances have grown more egregious. “We see non-lawyers who hold out that they provide immigration services and their victims pay them thousands of dollars,” she said. “These are the people who can least afford to lose that money, and we’ve seen a huge amount of financial damage done.” The ability to go undercover to investigate these claims is just one more resource the Bar now has to protect the public, Balogh said.

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