As an update to my blog post on attorneys assuming different identities while investigating online IP infringement, it’s interesting to note that the New York County Lawyers’ Association has issued an opinion that permits lawyers to use investigators who “dissemble” in order to identify infringers. The opinion takes a dim view of dissembling during investigation, but notes that discrimination testers and investigators posing as consumers to buy knock-off goods are well-accepted techniques. Tellingly, however, the opinion pointedly leaves for another day whether a lawyer, as opposed to an investigator hired by a lawyer, may dissemble during investigations. Law.com has a story summarizing the opinion with some commentary.
Personally, I’m not surprised by the opinion, which notes that no national consensus on the issue has emerged. I’ll be curious, however, to see what happens if dissembling by lawyers ever gets squarely considered. It seems that the fig leaf is pretty thin if we allow lawyers to hire people to dissemble for them. However, given the language in the opinion frowning on dissembling as a general rule, it seems IP lawyers must tread with care when adopting various identities during online investigations.