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Abstract

It has long been held that a lawyer may not act deceitfully when working on a case by making false statements to the opposing party, especially to a person who has already retained counsel and the lawyer has already made statements directly to the opposing party. However, like all other legal doctrines, there are exceptions to the requirement that a lawyer should not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation, as well as, the exceptions to the no-contact rule. Although there is only persuasive precedent in Virginia, it can be assumed that it is generally within the limits of professional ethics for a prosecutor to assist in an undercover (hereinafter “sting”) operation with law enforcement, even if those involved in the sting operation have reason to know that the unaware party has retained counsel. As technology progresses, the mechanisms used for law enforcement have greatly changed alongside everything else in society. The speed that technological advances often exceeds the speed at which laws can be enacted to address the new concerns that technological progressions introduce. Based on this notion, it is becoming more apparent in society that the authority of the state to enforce its laws is questionable in many of the fields in which the laws have yet to catch up with technology. One question the field of law raises is the extent to which a prosecutor may collaborate with law enforcement to use deceitful means online to gather information. Specifically, unaddressed is whether a prosecutor can legally and ethically assist law enforcement in acts, such as creating fictitious social media profiles and other types of deceptive means, over the internet when engaging in criminal investigations under Virginia law. Suppose John Doe, a man involved in a criminal enterprise, begins to get nervous that he is being investigated by the police and makes it clear to those around him that he has retained counsel and that his counsel will speak on his behalf. May the prosecutor speak directly to him? May the prosecutor ask a law enforcement official to pretend to be a layperson who wants to buy something illegal from John Doe? May a law enforcement official working with the prosecutor make a Facebook account under a fake name and then try to buy something illegal from John Doe? This analysis aims to address some of the concerns that correlate with these questions. With technology changing, the methods of law enforcement inevitably change too. Those changes result in ethical, constitutional, and civil issues that the law has yet to address to a significant extent. This analysis will first discuss the current standards conveying the ethical and legal bounds of prosecutors using deceitful acts and trickery for legitimate law enforcement purposes. It will next analyze the general legal and ethical implications of prosecutors’ involvement with the use of deceptive means or sting operations in the pre-indictment stage against a party known to already have retained counsel. The general concepts analyzed here are (a) how prosecutors can avoid Sixth Amendment concerns when dealing with parties who have already retained counsel, and (b) the reasoning as to why both federal and state courts encourage prosecutors to use sting operations. Lastly, the analysis will delve into how the application of legal and ethical concepts affects the current technological trends used by law enforcement officers for certain investigatory procedures over social media platforms.

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