United States: Cheat The Beatles

The Beatles. The name itself is magic. The Beatles’ music remains, as a whole, timeless and unparalleled in its genre. In a larger sense, the Beatles were the vanguard of a movement that changed the world, influencing everything from hair styles and clothing to war and peace, sex and drugs to films and television, politics and religion to class and, of course, music. Always greater than the sum of their parts, the Beatles will live forever as the musical genius of a generation rich in music.

Attorney-Beatles fans can only dream about representing the surviving Beatles. That distinction goes to Paul LiCalsi and Amy Lippman, of Gold, Farrell & Marks, LLP in New York City, who handle the Beatles’ interests in various intellectual property matters. A more coveted representation is difficult to imagine, except for one recent bit of unpleasantness: The Beatles’ lawyers stand accused of professional misconduct.

In April 1996, the Beatles sued International Collectors Society and its principals (ICS) in the U.S. District Court for the District of New Jersey.¹ ICS is in the direct marketing business. Its products include postage stamps issued by the governments of foreign countries, like Chad and Tanzania. The Beatles claimed that ICS was selling, without authorization, postage stamps featuring images of the Beatles in violation of their trademarks. In June 1997, the parties entered into a consent order dismissing the case with prejudice. In the consent order ICS agreed to be enjoined from marketing or distributing stamps bearing the image of the Beatles or Yoko Ono Lennon. One exception to this prohibition was that the ICS was permitted to sell the defendants limited quantities of certain stamps to members of ICS’s "Beatles/Lennon Club."

In August 1997, one of the attorneys for the Lennon Estate, Dorothy Weber, called the ICS "800" number. Using her maiden name to disguise her identity, Ms. Weber was able to order stamps despite the fact that she was not a member of the Beatles/Lennon Club. So were Ms. Weber’s secretary and the stepson of one of Ms. Weber’s partners. Ms. Weber told this to Gold, Farrell & Marks, who hired private investigators. Concealing their identity and misrepresenting their purpose, the private investigators successfully ordered ten different kinds of stamps from at least six ICS sales representatives, each of whom knew or should have known that none of the investigators was a Beatles/Lennon Club member. In addition, two of the stamp orders arrived with a free booklet entitled "99 Little Known Facts About John Lennon and Groucho Marx," which had not been approved for sale by the Lennon Estate.

The Beatles filed a motion for contempt of Court and violation of the consent order. ICS, represented by Jim Badke of Dewey Ballantine, argued in response that ICS had substantially complied with the consent order. In a cross-motion, ICS asserted that the consent order should be dissolved based on various alleged breaches by the Beatles of the consent order. In addition, ICS filed a motion for sanctions against the Beatles and their attorneys. The grounds for ICS’s motion for sanctions were that when they and their investigators contacted the ICS sales representatives, the Beatles’ lawyers had, principally through their investigators, violated Rules 8.4(c), 4.2 and 4.3 of the New Jersey Rules of Professional Conduct. ICS sought dismissal of the contempt motion or exclusion of the evidence on which it was based, based upon an emerging, if controversial, "exclusionary rule" that has been applied in cases involving evidence obtained in violation of ethical rules.²

In Apple Corps Limited v. International Collectors Society,³ the Honorable Joseph A. Greenaway, Jr., ruled on these motions in a lengthy opinion dated June 26, 1998. It is now on appeal in the U.S. Court of Appeals for the Third Circuit. Judge Greenaway granted the Beatles’ motion for contempt of Court and denied ICS’s motion to dissolve the consent order. Then he determined whether the Beatles’ lawyers had engaged in misconduct through their agents, implicitly applying the vicarious or derivative ethical responsibility set forth in Rules 8.4(a) (violating an ethical rule through another) and 5.3(c) (responsibility for nonlawyer agents) of the New Jersey (and Colorado) Rules of Professional Conduct.⁴ Judge Greenaway’s rulings on these ethical issues provide as much guidance for Colorado lawyers as they do for New Jersey lawyers on the ethical use of private investigators and other lawyer-agents.

1. The Alleged Rule 4.2 Violations

ICS first claimed that the Beatles’ lawyers had, directly and through their investigators, violated New Jersey Rule 4.2. Similar though not identical to Colo. R.P.C. 4.2, New Jersey Rule 4.2 prohibits lawyers from communicating about the subject of a representation with persons they know or should know are represented by counsel, "including members of an organization’s litigation control group."⁵ The litigation control group is "deemed to include current agents and employees responsible for or significantly involved in the determination of the organization’s legal position in the matter whether or not in litigation, provided however, that significant involvement requires involvement greater and other than the supplying of factual information or data respecting the matter."⁶ The only exceptions to the prohibition are where the other lawyer consents to the communication or the communication is authorized by law.

The Court found that the Beatles’ lawyers did not violate this rule because ICS’s sales representatives did not fall into the category of the "litigation control group." The Court found that the ICS sales representatives were not "responsible for or significantly involved in the determination of [ICS]’s legal position in the matter" and did nothing more than supply "factual information or data respecting the matter."⁷ There was no evidence that the investigators asked the ICS sales representatives any questions designed to elicit information other than that which is necessary to fill an order, including a recommendation of which stamps to purchase. The Court reasoned that to apply Rule 4.2 to such conduct would "serve merely to immunize corporations from liability for unlawful activity, while not effectuating any of the purposes behind the rule."⁸

Quite deliberately, New Jersey Rule 4.2 affords limited protection to represented organizations.⁹ Indeed, ICS argued strenuously that the Court should apply the New York Code of Professional Responsibility, which, presumably, would have been more favorable to ICS. After a careful and interesting analysis of choice of law principles concerning the application of ethical rules, Judge Greenaway applied the New Jersey Rules of Professional Conduct.¹⁰

The result in Colorado on this issue may well have been different. Unlike Colo. R.P.C. 4.2, New Jersey Rule 4.2’s "litigation control group" does not encompass nonmanagerial employees "whose act or omission in connection with that matter may be imputed to the organization for the purposes of civil or criminal liability or whose statement to the organization may constitute an admission on the part of the organization."¹¹ Notwithstanding this language and a cogent explanation of its application in CBA Ethics Committee Revised Formal Opinion 69 ("Revised Opinion 69"),¹² whether these two categories of employee are protected under Colo. R.P.C. 4.2 may depend on the judge. In Johnson v. Cadillac Plastic Group, for example, Judge John L. Kane, Jr., rejected the "admissions restriction" read into Colorado and Model Rules 4.2 by the Comment to them. He reasoned that the Comment "stifles the truth-seeking function of courts and ‘treats corporate employees as a form of company property.’"¹³ In any case, the Beatles clearly sought to use the statements and conduct of the ICS sales representatives to impute liability to ICS, and that seems to be prohibited even under Judge Kane’s restrictive reading of Colo. R.P.C. 4.2.¹⁴

2. The Alleged Rule 8.4(c) Violations

ICS further alleged that the Beatles’ counsel violated New Jersey Rule 8.4(c), which, just like Colorado and Model Rules 8.4(c), prohibits "conduct involving dishonesty, fraud, deceit or misrepresentation."¹⁵ Judge Greenaway rejected this allegation for two reasons. First, he found that

[u]ndercover agents in criminal cases and discrimination testers in civil cases, acting under the direction of lawyers, customarily dissemble as to their identities or purposes to gather evidence of wrongdoing. This conduct has not been condemned on ethical grounds by courts, ethics committees or grievance committees. This limited use of deception, to learn about ongoing acts of wrongdoing, is also accepted outside the area of criminal or civil-rights law enforcement. The prevailing understanding in the legal profession is that a public or private lawyer’s use of an undercover investigator to detect ongoing violations of the law is not ethically proscribed, especially where it would be difficult to discover the violations by other means. . . .

Plaintiffs could only determine whether Defendants were complying with the consent order by calling ICS directly and attempting to order the Sell-Off Stamps. If Plaintiffs’ investigators had disclosed their identity and the fact that they were calling on behalf of Plaintiffs, such an inquiry would have been useless to determine ICS’s day-to-day practices in the ordinary course of business.¹⁶

Second, the Court found that the Rule 8.4(c) prohibition on "misrepresentation" applied only to material misrepresentations. Otherwise the prohibition in New Jersey Rule 4.1(a) on making a "false statement of material fact to a third person" would be "entirely superfluous," contrary to the rule of statutory construction giving effect to the entire text of a statute if possible.¹⁷ He further reasoned that another rule of statutory construction limits the meaning of a word by the series of words or phrases of which it is part, such that Rule 8.4(c) should apply

only to misrepresentations that manifest a degree of wrongdoing on a par with dishonesty, fraud, and deceit. In other words, it should apply only to grave misconduct that would not only be generally reproved if committed by anyone, whether lawyer or nonlawyer, but would be considered of such gravity as to raise questions as to a person’s fitness to be a lawyer. Investigators and testers, however, do not engage in misrepresentations of the grave character implied by the other words in the phrase but, on the contrary, do no more than conceal their identity or purpose to the extent necessary to gather evidence.¹⁸

Judge Greenaway’s policy rationale is compelling, although there is room for disagreement over whether the ends justify the means in a given case. That said, it is troubling to think that an attorney discipline decision might turn on whether the adjudicative body believed that the attorney’s purpose was worthy—an inherently subjective determination. Perhaps the standard is, or should be, whether the purpose was lawful and the attorney acted in good faith. Although government attorneys historically have been afforded greater latitude in the use of deception in official investigations, a hard distinction between government and private lawyers in this respect is inappropriate and unjustifiable.¹⁹ Indeed, determining whether ICS was violating the consent order is a good example of a justifiable private purpose.

Again, however, variations in the Colorado and New Jersey ethical rules change the Rule 8.4(c) analysis and possibly the result in this state. Unlike New Jersey and Model Rules 4.1(a), Colo. R.P.C. 4.1(a) was deliberately drafted so as not to limit the prohibition on misrepresentations to "third persons" to those that are material.²⁰ Consequently, application of the rule of statutory construction disfavoring superfluous language would not lead to the inference that Colo. R.P.C. 8.4(c) applies only to material misrepresentations. Colo. R.P.C. 4.1(a)’s ban on false or misleading statements of fact to third persons is entirely subsumed within Colo. 8.4(c)’s ban on misrepresentation, at least insofar as factual misrepresentations to third persons are concerned.²¹

Judge Greenaway’s second statutory analysis, however, is equally applicable to Colo. R.P.C. 8.4(c) as it is to New Jersey Rule 8.4(c); a "misrepresentation" in violation of Colo. R.P.C. 8.4(c) should be as serious as its companion terms, "dishonesty, fraud and deceit."²² Further, misrepresentations in violation of Colo. R.P.C. 8.4(c) should be required to reflect adversely on the lawyer’s fitness to practice law. To apply it without that limitation would lead to the conclusion that Colo. R.P.C. 8.4(c) - which explicitly applies to conduct in other than a professional capacity²³ - would prohibit benign, time-honored domestic deceptions such as those involving the existence of Santa Claus.²⁴ Another rule of statutory construction is to avoid interpretations that yield absurd results.²⁵

This interpretation is also buttressed by the Comment to Colo. R.P.C. 8.4. In distinguishing between criminal offenses that reflect adversely on fitness to practice law and those merely involving "moral turpitude" (e.g., adultery), the Comment concludes that whether or not lawyers are acting in the capacity of a lawyer, they are professionally answerable for the former offenses only, not the latter.²⁶ Whether or not an element of materiality formally should be required for misrepresentations to violate Rule 8.4(c), as a matter of statutory construction and disciplinary practice, that element is present already.²⁷

Finally, Judge Greenaway was correct in finding that investigators and testers in general do not engage in misrepresentations so grave as to raise questions about the supervising lawyer’s fitness to be a lawyer. The specific misrepresentations engaged in on behalf of the Beatles’ lawyers appear to have consisted mainly of random false statements about (a) being a Beatles fan, (b) how they learned of the availability of the stamps (e.g., "from a friend"), and (c) for whom the stamps were intended (e.g., husband’s anniversary). In her initial call to ICS, Mrs. Lennon’s attorney used her maiden name to disguise her identity; otherwise, no fictitious names were used. The investigators "posed as normal customers. The investigator did not make any misrepresentation that he or she was a Beatles/Lennon Club member. In most instances, the plaintiffs’ investigators told the sales representative that he or she was not a Beatles/Lennon Club member. Furthermore, the defendants charged all of the plaintiffs’ investigators the higher, non-member price for the sell-off stamps." ²⁸

Whether misrepresentations made by investigators and testers generally rise to the level of material misrepresentations, or are so grave as to raise questions about the supervising lawyer’s fitness to be a lawyer (whatever the difference), is a question that is not susceptible to bright-line determination.²⁹ This issue must be determined on a case-by-case basis. None of the relatively de minimis misrepresentations made on behalf of the Beatles, however, could reasonably have led the ICS sales representatives to sell stamps in violation of the consent order when they otherwise would not have done so.³⁰

Indeed, it is as much what was not said (that the caller was testing compliance on behalf of the Beatles’ lawyers) as what was said that forms the crux of the deception. Rule 8.4(c) has been held to impose an ethical duty to speak in certain circumstances.³¹ The unspoken words and misrepresentations at issue, however, violated no other ethical rules or criminal laws, caused no harm to ICS except that which ICS brought upon itself, and appear to have been no more extensive than necessary to accomplish a legitimate purpose that could not have been accomplished without them.³² Only an absolute prohibition on misrepresentation under Rule 8.4(c) would give rise to attorney disciplinary and/or evidentiary consequences in these circumstances.

3. The Alleged Rule 4.3 Violations

The third argument raised by ICS in its motion for sanctions is that the Beatles’ lawyers violated New Jersey Rule 4.3, which, like Colorado and Model Rules 4.3, states in relevant part, "In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested. When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer’s role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding."³³ Judge Greenaway held that the Beatles’ lawyers and their investigators did not violate this rule because they were not acting in the capacity as lawyers when they dealt with the ICS investigators.³⁴

It is clear that the Beatles’ investigators (most of them nonlawyers) were not acting in the capacity of a lawyer when they contacted ICS--even Ms. Lippman’s husband, who happened to be a lawyer.³⁵ The lawyers supervising them were, however, acting in such a capacity. Indeed, Judge Greenaway further justified his ruling on this issue by stating that the investigation was necessary to determine whether the motion for contempt complied with F.R.C.P. 11.³⁶

The supervising lawyers did not violate Rule 4.3, though, because they did not deal directly with ICS representatives. Rule 4.3’s prohibition against feigning disinterest to a nonlawyer, or failing to correct a nonlawyer’s misunderstanding of the lawyer’s role, seeks to prevent lawyers from using their status as a lawyer to mislead a nonlawyer.³⁷ "Since Rule 4.3 rests upon assumed expectations of persons dealing directly with lawyers, it should have no vicarious applicability to lawyers supervising the activities of undercover investigators and testers, for the latter by definition do not represent themselves as acting on behalf of a lawyer, and so cannot engender expectations of the sort that Rule 4.3 is intended to protect."³⁸

It is a closer question whether Ms. Weber violated Rule 4.3. She directly contacted ICS and, by using her maiden name, disguised her identity as counsel for the Lennon Estate and Mrs. Lennon. "A lawyer acting as a lawyer but disguising his identity as such in dealing with an unrepresented person can also violate Rule 4.3 because, although he is acting as a lawyer, he has allowed that person to misunderstand that fact."³⁹ Still, Ms. Weber’s conduct seems far removed from the abuses sought to be prevented by Rule 4.3, namely prohibiting lawyers from misleading nonlawyers about the interests they are paid to advocate. In any event, ICS may not have standing to seek suppression of the evidence of the stamp sale made to Ms. Weber, because the ICS sales representative she dealt with is the person whose interest was affected under Rule 4.3, not ICS.⁴⁰

Apple Corps Limited v. International Collectors Society pits the interests of society in protecting organizations and their employees from being taken advantage of by opposing counsel against the interests of society in ferreting out corporate wrongdoing. It is an uneasy decision to condone any form of deception by or on behalf of private attorneys. One can imagine many circumstances in which the deception is so extensive or the cause so dubious that the ends do not justify the means.

This difficulty is not reason to prohibit all such deception. Rather, it is reason to limit the deception to appropriate means and circumstances. By the same token, courts should reject attempts to turn an ethical rule like Rule 4.2 into a "rule of political and economic power that shelters organizations, corporations and other business enterprises from the legitimate less costly inquiry and fact gathering process sometimes necessary to make a legitimate assessment of whether a valid claim for relief exists."⁴¹

ICS faces an uphill battle in the Third Circuit. It is the appellant, its best defense is that it never should have been caught cheating on the consent order, and its opponent is a strong sentimental favorite. If ownership of Beatles recordings is grounds for recusal, the appellate panel may consist exclusively of senior judges. Then again, it is the conduct of the Beatles’ lawyers and not the Beatles that is at issue. The Beatles themselves are beyond reproach.

Alexander R. Rothrock, editor of the Trial Talk® "Ethics Notes" column is a shareholder of Burns, Figa & Will, P.C. He is a member of the Colorado Bar Association Ethics Committee.

1.Apple Corps Limited v. International Collectors Society, 15 F. Supp. 2d 456 (D. N.J. 1998).

2.E.g., Lennen v. John Eppler Machine Works, Inc., 1997 U.S. Dist. LEXIS 13857 (E.D. Pa. Sept. 5 1997); In re Air crash Disaster, 909 F. Supp. 1116 (N.D. Ill. 1995); Faison v. Thornton, 863 F. Supp. 1204 (D. Nev. 1993); Insituform of North America, Inc. v. Midwest Pipeliners, Inc., 139 F.R.D. 622 (S. D. Ohio 1991); Annotated Model Rules of Professional Conduct 407-08 (3d ed. 1996) (hereinafter, "Annotated Model Rules") (suppression of evidence, return or documents and notes, and disqualification of counsel may be ordered for violations of Rule 4.2). But see Webb v. ABF Freight System, Inc., 1998 U.S. App. LEXIS 21609 (10th Cir. Sept. 4, 1998) (not error for trial court to issue curative jury instruction and deny motion for new trial where plaintiff’s attorney cross-examined management employee of opposing party concerning conversation between them that allegedly violated Colo. R.P.C. 4.2); United States v. Adams, 1992 U.S. App. LEXIS 25791 (10th Cir. October 5, 1992) (unpublished) (Rule 4.2 rejected as basis for suppression); Johnson v. Cadillac Plastic Group, Inc., 930 F. Supp. 1437 (D. Colo. 1996) (rejecting magistrate’s recommendation that plaintiff be barred from relying on evidence gathered allegedly in violation of Colo. R.P.C. 4.2; opposing party employee not a protected managerial employee); Weider Sports Equipment Co., Ltd. v. Fitness First, Inc., 912 F. Supp. 502 (D. Utah 1996) (rejecting application of "exclusionary rule" of ethics).

3.Apple, 15 F. Supp. 2d 456.

4.D. Isbell & L. Salvi, Ethical Responsibility of Lawyers for Deception by Undercover Investigators and Discrimination Testers: An Analysis of the Provisions Prohibiting Misrepresentations Under the Model Rules of Professional Conduct, 8 The Georgetown Journal of Legal Ethics 791, 818 (1995) (hereinafter, "Isbell & Salvi"); see Annotated Model Rules 8.4(a) (prohibiting lawyers from violating or attempting to violate an ethical rule "through the acts of another") and 5.3(c) (lawyer responsible for ethical misconduct of another if done under lawyer’s orders or with lawyer’s knowledge or ratification, or lawyer is partner in firm or has direct supervisory authority for such person). Colorado and New Jersey adopted these rules verbatim from the ABA Model Rules.

5.Apple, 15 F. Supp. 2d at 473 (quoting New Jersey Rule of Professional Conduct 4.2).

6.Id. at 463-74 (quoting New Jersey Rules of Professional Conduct 1.13).

7.Id. at 474 (quoting New Jersey Rule of Professional Conduct 4.2) (brackets in original).

8.Id. at 475.

9.For a comprehensive discussion of the history of New Jersey Rule 4.2, see Michaels v. Woodland, 988 F. Supp. 468 (D. N.J. 1997).

10.Apple, 15 F. Supp. 2d at 472-73.

11.Comment, Model and Colorado Rules 4.2; see also CBA Revised Formal Ethics Opinion 69, "Communicating with the Employee of an Adverse Party Organization" (June 10, 1987) ("Revised Opinion 69"), which continues to be the leading authority on Colo. R.P.C. 4.2, even though it interpreted the former Colorado Code of Professional Responsibility. 16 The Colorado Lawyer 1429 (August 1987). Construing the comment to Model Rule 4.2 (identical to the comment to Colo. R.P.C. 4.2), Revised Opinion 69 states that "not all managerial employees are ‘parties.’ . . . Managerial employees with the authority to commit the organization to a position, but not with respect to the subject matter of representation, would not be considered parties. Likewise, employees whose acts, omissions or statements are imputed to the organization, but not with respect to the subject of representation, are not protected." Id. In other words, Revised Opinion 69 interprets Colo. R.P.C. 4.2 to prohibit communications with opposing party employees whose acts, omissions or statements are imputed to the organization with respect to the subject of representation.

12.CBA Revised Formal Ethics Opinion 69, "Communicating with the Employee of an Adverse Party" (June 20, 1987), 16 The Colorado Lawyer 1429 (August 1987).

13.Johnson v. Cadillac Plastic Group, Inc., 930 F. Supp. 1437 (D. Colo. 1996) 930 F. Supp. at 1442 (quoting Weider, 912 F. Supp.at 509); see also Weider, 912 F. Supp. at 507-08 ("If read literally, and implying the broadest possible interpretation for the term admission, a construction could arise from the argument that any communication that could fit under Rule 801(d)(2)(D) F.R.E. would be prohibited, therefore, virtually any communication with an organization employee would be prevented without the organization’s counsel being present or contacted if the organization is a party."). The Weider court construed the Comment to Utah Rule 4.2 as advisory only because, it found, it is contrary to the plain language of the rule and the District of Utah Local Rules do not adopt the comments to the Utah Rules of Professional Conduct. Id. at 506; see also Johnson, 930 F. Supp. at 1442 ("The ABA comment [to Rule 4.2] has been roundly criticized by courts and commentators alike").

14.Accord Isbell & Salvi at 823 n. 112 ("It would appear that any representative or employee of a target organization from whom a tester might elicit useful evidence would be included" in either the liability or admissions categories of the comment to Model Rule 4.2).

15.Apple, 15 F. Supp. 2d at 475-476.

16.Id. at 475 (footnotes omitted) (citing Hamilton v. Miller, 477 F.2d 908, 909 n. 1 (10th Cir. 1973) (giving "no comfort" to criticism of University of Wyoming officials who posed as prospective tenants to discover evidence of discrimination in housing).

17.Id. at 475-76; see id. (statute should be construed so that every word has some operative effect and not so as to render on part inoperative).

18.Id. at 476 (quoting Isbell & Salvi). Accord, Essex County Jail Inmates v. Treffinger, 18 F. Supp 2d 418 n.6 (D. N.J. 1998).

19.See Sequa Corporation v. Lititech, Inc., 807 F. Supp. 653, 663 (D. Colo. 1992) (raising ethical concerns about attorneys who hired a private investigator who surreptitiously tape-recorded telephone conversations in hopes of proving an ethical violation warranting disbarment; "Law enforcement authorities are afforded license to engage in unlawful or deceptive acts to detect and prove criminal violations. Private attorneys are not."); People v. Smith, 778 P.2d 685 (Colo. 1989) (suggesting that prosecutors but not private attorneys might be ethically permitted to surreptitiously tape-record telephone conversations). But see People v. Reichman, 819 P.2d 1035 (Colo. 1991) (prosecutor disciplined for filing false criminal complaint against undercover narcotics officer, conducting bogus search of his property, and causing officer to make false statements in court, all in order to protect officer’s identity). Sequa Corp. and Smith are distinguishable because the lawyers in those cases violated ethical rules separate and independent from Colo. R.P.C. 8.4(c) during the investigative process. Accord Isbell & Salvi at 822-24.

20.See Colo. R.P.C. 4.1(a) and Committee Comment.

21.Presumably, Rule 4.1(a) would not apply to the Beatles’ lawyers because ICS was not a "third person" but a litigation adversary, even though the case was not pending during the investigation. "Third persons" typically refer to persons with an adverse interest to the lawyer’s client, such as creditors. It also has been used in connection with government officials such IRS agents and court personnel; opposing counsel; clients; and documents submitted in court. Annotated Model Rules at 385-87. Similarly, Colo. R.P.C. 4.2 protects more than just parties in litigation, although Judge Kane held that the "protections of Rule 4.2 attach only once an ‘adversarial relationship’ sufficient to trigger an organization’s right to counsel arises." Johnson, 930 F. Supp. at 1441 (citing Revised Opinion 69 and United States v. Ryans, 903 F.2d 731 (10th Cir. 1990)).

22.Accord P. Jarvis & B. Tellam, The Dishonesty Rule: A Rule with a Future, 74 Or. L. Rev. 665, 689, n. 130 & 694-695 (1995) (hereinafter "Jarvis & Tellam")

23.Isbell & Salvi at 814 & n. 84.

24.W. Hodes, Two Cheers for Lying (About Immaterial Matters), 5 The Professional Lawyer 1, 7 n. 3 (May 1994) (hereinafter Two Cheers).

25.Conte v. Meyer, 882 P.2d 962, 965 (Colo. 1994).

26.Isbell & Salvi at 816 & n. 90.

27.Two Cheers at 7 n. 3; see also id. (debating materiality requirement under Model Rules) and Jarvis & Tellam 687-88 (critiquing foregoing materiality debate); see also CBA Formal Ethics Opinion 80 (February 18, 1989), "Lawyer’s Duty to Disclose Mistakes in Commercial Closing," 18 The Colorado Lawyer 1151 (June 1989) (failure of attorney for party in commerical transaction to disclose material mistake in closing documents prepared by opposing counsel violates rule prohibiting dishonesty, fraud, deceit or misrepresentation).

28.Apple, 15 F. Supp. 2d at 474-75.

29.See Isbell & Salvi at 813 & n. 79 (disagreeing with another commentator over whether concealment of identities or use of fictitious credentials by investigators and testers constitutes material misrepresentation under Rule 4.1(a)).

30.See id. at 812-13 & n. 78 (applying Restatement (Second) of Torts § 525 (1977) test on materiality and disagreeing with another commentator on materiality of testers’ misrepresentations).

31.Jarvis & Tellam at 689-92; see also Disciplinary Case Summaries, Attorney B, 23 The Colorado Lawyer 2786 (December 1994) (private censure "misrepresentation by omission," where lawyer failed to disclose erroneous disbursement of court registry to court and opposing counsel); Attorney F, 21 The Colorado Lawyer 2598 (December 1992) (private censure for "misrepresentation by omission" where lawyer failed to ensure that mother-in-law’s husband understood his $10,000 loan to lawyer and failed to provide husband with promissory note); CBA Formal Ethics Opinion 80 (February 18, 1989), Lawyer’s Duty to Disclose Mistakes in Commercial Closing, 18 The Colorado Lawyer 1151 (June 1989) (failure of attorney for party in commerical transaction to disclose material mistake in closing documents prepared by opposing counsel violates rule prohibiting dishonesty, fraud, deceit or misrepresentation).

32.Id.; Isbell & Salvi at 829.

33.Apple, 15 F. Supp. 2d at 476.

34.Id. at 476-77 (citing Isbell & Salvi at 824).

35.See Isbell & Salvi at 814-15 (no ethical culpability should arise from misrepresentations by lawyers acting as testers in a case in which representational responsibility belongs to other lawyers).

36.Apple, 1998 U.S. Dist. LEXIS 9747 at *67.

37.Annotated Model Rules at 410.

38.Isbell & Salvi at 825 (quoted with approval in Weider, 912 F. Supp. at 511-12).

39.Id.; see also Annotated Model Rules at 410 (citing In re Anonymous Member of the South Carolina Bar, 322 S.E.2d 667 (S.C. 1984) (violation of rule proscribing conduct involving dishonesty when lawyer called unrepresented potential defendant and identified himself only as injured party’s cousin, and not as lawyer).

40.Weider, 912 F. Supp. at 512.

41.Id. at 508.