New York Ethics Opinion Addresses Ethical Limits on Attorney Participation in Whistleblower Investigations
Lawyers representing False Claims Act whistleblowers need to be mindful of a practical question before a qui tam complaint is filed: how far may counsel go in helping a client develop additional evidence? Ethics Opinion 1297, recently issued by the New York State Bar Association’s Committee on Professional Ethics, provides important guidance for attorneys conducting pre-filing whistleblower investigations and is likely to become a leading reference on the ethical boundaries governing counsel’s role.
The opinion concludes that a lawyer may not advise, direct, or assist a client in engaging in deceptive conduct to obtain evidence for a potential FCA case. At the same time, it recognizes that counsel may advise clients regarding the legal consequences of conduct they propose to undertake—or have already undertaken. The distinction between counseling about deceptive conduct and participating in deceptive conduct lies at the heart of the opinion.
The inquiry arose from a prospective FCA relator who wished to pose as a potential customer of companies allegedly engaged in fraud and falsely suggest that government grant funding might be available in order to elicit additional information. Counsel asked whether the New York Rules of Professional Conduct permitted advising the client regarding that investigative strategy.
Relying principally on Rules 8.4(a), 8.4(c), and 1.2(d), the Committee answered no. Although lawyers may explain the legal consequences of proposed conduct, the Rules do not permit attorneys to induce, supervise, or facilitate a client’s use of deception as an investigative technique.
Opinion 1297 distinguished its reasoning from a prior New York bar association opinion that recognized limited circumstances in which attorney-supervised investigations involving “dissemblance” may be ethically permissible, particularly in intellectual property or civil rights matters. In the FCA context, Opinion 1297 makes clear that New York does not recognize a comparable exception for private counsel representing prospective relators.
Whether other jurisdictions ultimately adopt the same approach remains to be seen, but the opinion is likely to become a frequent point of reference whenever courts or ethics committees consider the permissible role of attorneys in pre-filing qui tam investigations.
For companies responding to FCA allegations, the opinion may also become relevant in evaluating how evidence supporting a qui tam complaint was obtained and the extent of counsel’s involvement in that process. While the Committee expressly declined to address the admissibility of evidence or the legality of the client’s proposed conduct under substantive law, Ethics Opinion 1297 provides a thoughtful framework for distinguishing vigorous legal representation from impermissible attorney participation in deceptive investigative conduct.
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