New York State Bar Association Ethics Opinion 1297, issued July 23, 2026, concludes that attorneys representing whistleblowers may not advise, direct, or supervise clients who use deception to obtain evidence before filing a lawsuit. Lawyers may, however, advise clients about the legal consequences and risks of such conduct. While the opinion is directed at whistleblowers and qui tam lawsuits, it has broad implications for all types of pre-litigation investigations and self-help discovery.
This new ethics opinion can significantly affect how evidence is gathered before a lawsuit is filed. A whistleblower who consults counsel early may avoid investigative techniques that could later complicate the case.
Key Takeaways
- Lawyers may not advise clients to use deception when conducting an investigation or gathering evidence.
- Lawyers may explain legal consequences of such conduct.
- The New York Rules of Professional Conduct do not include exceptions for False Claims Act or qui tam cases.
- Whistleblowers should consult an experienced False Claims Act attorney before gathering evidence.
New York State Bar Association Ethics Opinion 1297
In Opinion 1297 (July 23, 2026) the New York State Bar Association (NYSBA) Committee on Professional Ethics concluded that, under the current New York Rules of Professional Conduct, a lawyer may not advise, encourage, supervise, or assist a client in using deception to obtain evidence for a prospective False Claims Act case.
The opinion addresses a common issue in fraud investigations.
The prospective whistleblower already possessed evidence suggesting that companies had fraudulently obtained federal funds but wanted additional proof before filing suit. The client proposed contacting company representatives while pretending to be a prospective customer eligible for grant funding representations that would have been false. The lawyer asked whether advising the client regarding this investigative strategy would be ethically permissible.
The Committee answered that it would not. The opinion rests primarily on three provisions of the New York Rules of Professional Conduct.
Rule 8.4(c): Lawyers May Not Engage in Deception
Rule 8.4(c) broadly prohibits lawyers from engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation. Specifically, Rule 8.4(c) provides:
“A lawyer or law firm shall not . . . engage in conduct involving dishonesty, fraud, deceit or misrepresentation.”
“Fraud” is defined in the Rules very broadly. Rule 1.0(i) makes clear that “fraud” or “fraudulent” conduct is not limited to conduct that is fraudulent under the substantive law:
“‘Fraud’ or ‘fraudulent’ denotes conduct that is fraudulent under the substantive or procedural law of the applicable jurisdiction or has a purpose to deceive, provided that it does not include conduct that, although characterized as fraudulent by statute or administrative rule, lacks an element of scienter, deceit, intent to mislead, or knowing failure to correct misrepresentations that can reasonably be expected to induce detrimental reliance by another.”
New York Rules of Professional Conduct, Rule 1.0(i).
The NYS Bar Association’s opinion notes that ordinary meaning of “dishonesty,” “deceit,” and “misrepresentation” are intentionally broad and encompass far more than outright fraud. Rule 8.4(c)’s prohibition on engaging in “conduct involving dishonesty, fraud, deceit or misrepresentation” therefore reaches a wide range of deceptive conduct.
Rule 8.4(a) prevents lawyers from violating the Rules “through the acts of another.” Accordingly, an attorney cannot avoid responsibility for deceptive conduct by directing a client or investigator to engage in conduct that the attorney could not ethically undertake personally.
Rule 1.2(d): Lawyers May Explain the Law but Not Help Carry Out Deception
Having concluded that a lawyer may not engage in deceptive conduct directly or through a client, the Committee carefully distinguished between: (a) discussing the legal consequences of proposed conduct; and (b) assisting the client in carrying out that conduct.
Under Rule 1.2(d), lawyers remain free to advise clients regarding the legal risks and consequences of contemplated conduct. What they cannot do is encourage or help implement deceptive investigative tactics.
Why This Opinion Matters
False Claims Act cases are filed before the government has conducted an investigation. Potential relators often possess significant information but wish to gather additional evidence before filing a sealed complaint.
Opinion 1297 makes clear that even if the client’s proposed conduct might ultimately be lawful under substantive law the lawyer cannot ethically direct or supervise deceptive investigative techniques unless the Rules themselves provide an exception. At present, New York has adopted no such exception.
The Committee nevertheless recognized that competent representation may require lawyers to research and explain the potential legal consequences if the client intends to proceed independently. Indeed, the Committee concluded that providing such advice may be required by the lawyer’s duties of competence and diligence.
How This Opinion Differs From Earlier New York Authorities
One of the most interesting aspects of Opinion 1297 is that it carefully reviews two influential but different approaches previously taken by other New York bar associations.
In Opinion 737 (2007), the New York County Lawyers Association (“NYCLA”) concluded that lawyers may, in limited circumstances, supervise investigators who engage in what it called “dissemblance.” Under the NYCLA’s ethics opinion, a lawyer may engage in undercover activity only when:
- the investigation involves civil rights, intellectual property, or another investigation expressly authorized by law;
- the evidence cannot reasonably be obtained otherwise;
- no other ethical rules are violated (including the no-contact rule);
- the investigation does not improperly invade the rights of third parties; and
- privileged communications are not solicited.
Significantly, the NYCLA viewed these exceptions as already existing within the ethical rules.
The New York City Bar Association took a different path. Rather than interpreting Rule 8.4 to contain implied exceptions, three City Bar committees concluded in a 2011 report that the Rules should be amended to expressly authorize lawyers to supervise lawful undercover investigations.
The proposed amendment would have allowed lawyers to advise or supervise otherwise lawful undercover investigations so long as Rule 4.2 (the “no-contact” rule) was not violated. The City Bar therefore agreed with NYCLA’s underlying policy concerns but disagreed with its interpretive approach.
The NYSBA ultimately sided with neither approach. Instead, the Committee concluded that:
- the New York Rules presently contain no express exception applicable to False Claims Act investigations;
- NYCLA Opinion 737 should not be read as allowing a lawyer’s involvement in “conduct involving dishonesty, fraud, deceit or misrepresentation”;
- the City Bar’s proposal was never adopted; and
- absent an amendment to the Rules, lawyers remain prohibited from inducing, assisting, or supervising deceptive investigative conduct by private clients.
Practical Takeaways for Whistleblowers and Their Lawyers
Opinion 1297 reflects a cautious approach to attorney participation in pre-suit investigations. Whether the Rules should be amended as proposed by the New York City Bar Association remains an open question. Until that occurs, attorneys representing whistleblowers should assume that advising or supervising deceptive investigative conduct falls outside the permissible bounds of the New York Rules of Professional Conduct.
This creates risks for whistleblowers and their lawyers. Whistleblower cases succeed or fail based upon evidence gathered before the government ever becomes involved. Unlike typical lawsuits, where much of the evidence will be developed during discovery, a qui tam case requires a significant amount of investigative time and effort before a case is filed. The case is then filed under seal and handed over to the government, which commences its own investigation. It is not unusual for such cases to remain under seal for years before the defendant learns of their existence and raises defenses. At that point it is often too late to correct any ethical or evidentiary mistakes that may have been made.
Opinion 1297 therefore has practical implications not only for lawyers but also for prospective whistleblowers deciding how to investigate and prove fraud. Lawyers must distinguish between advising clients about legal consequences and directing investigative activity. They must carefully evaluate proposed evidence-gathering techniques before recommending them, particularly when they involve false identities, misrepresentations, covert communications, or undercover interactions with potential defendants. Clients must understand that ethical restrictions applicable to lawyers are not necessarily identical to the substantive law governing their own conduct.
Finally, lawyers should remember that ethical limitations may be more restrictive than evidentiary rules. Although judicial decisions have allowed the introduction of evidence obtained through undercover investigations, the NYSBA has concluded in this ethics opinion that those decisions do not answer the question of a lawyer’s professional responsibility.
Overall, Opinion 1297 is likely to become an important reference point for lawyers representing False Claims Act relators in New York. Its significance lies not only in its conclusion, but also in its thoughtful analysis of competing ethical frameworks and its clear delineation between permissible legal advice and impermissible participation in deceptive investigative conduct. For practitioners in the whistleblower field, it underscores that effective advocacy begins with careful attention to professional responsibility as well as substantive law.
About the Author
John Howley, Esq. represents whistleblowers in False Claims Act, Medicare and Medicaid fraud, retaliation, and related litigation throughout the State of New York.
