An Arkansas lawyer was disciplined in South Carolina for hiring private investigators who did their jobs well, for conduct allowed in Georgia, Arkansas and by the American Bar Association

It is a well known fact that the police is allowed to lie to the subject of its investigation in order to obtain information.

And, the police is often working under the guidance of an attorney - the state or county prosecutor guiding the investigation.

I have never read about a prosecutor disciplined in any state for directing the police to lie to a suspect in order to elicit information.

In fact, in the police training lying to the suspect, or "duplicity and pretense" are paraded as legitimate interrogation and investigation techniques.

Yet, in a case with apparent equal protection problems, a private attorney was just disciplined by the State of South Carolina for doing exactly the same.

An Arkansas attorney Cecil Duff Nolan, Jr. allegedly hired and sent into South Carolina private investigators who lied to suspects in order to collect information.

Here is what the attorney was disciplined for:

Ok, where do I begin.

First, South Carolina, as far as I know, does not have a criminal statute prohibiting surreptitious telephone recording when one party to the recorded telephone conversation gives consent to the recording.

And, without such a statute, there is no right to regard such recording as a crime.

Moreover, South Carolina courts, also as far as I know, adhere to federal rules regarding surreptitious telephone recording, which is a one-person consent statute - so, if the investigators gave themselves consent to record a conversation they participated in, their conduct was lawful.

As to impersonating somebody else - here, posing as a customer or potential customer - and "prodding", or, rather, asking about products, how else does the court think an investigation can be conducted, just walk through the front door, introduce yourself as a private investigator, "honestly" (or, rather, stupidly) say what you are investigating and why, and expect to receive honest answers to your questions?

By this disciplining decision South Carolina in effect prohibited its attorneys to hire investigators at all - because what private investigators did in this case is their usual investigation techniques and practices.

Nor are any "third party rights" violated.

The investigators were actually investigating potential infringement of somebody's intellectual rights.  There is no "third party right" to be free from an investigation into your own misconduct - because this is what South Carolina disciplinary decision implies.

So, on the one hand, "...over the last 35 years courts have upheld countless confessions even though the investigator lied to the suspect during an interview or interrogation. In most of these cases the investigator made false statements about being in possession of evidence that implicated the suspect in the crime e.g., eye-witness, fingerprint, DNA, etc."

And that is in criminal cases, where consequences of such lying by investigators are dire.

Yet, investigators lying to the suspect in the exact same manner, or worse, as an attorney's private investigators in a civil case were - impersonating somebody else, asking some questions as if they were customers and not investigators - somehow results in discipline.

Now what?

South Carolina attorneys will not be hiring investigators for fear of discipline?

Or, private investigators will suddenly turn stupid and start presenting themselves to people under their investigation as private investigators?

For example, this private investigator who was sharing online some of his tricks and success stories:

I doubt that the private investigator or his staff member just marched to the ex-wife and asked her - what is your extra source of income that you do not want to reveal to your husband with whom you are involved in a child support battle?  Because, otherwise, that private eye would not have gotten the information he actually did get.

Since it was for a court case, I wonder if the attorney or party who hired him was sanctioned by the court for not being honest with the ex-spouse who was concealing her income from the court and the ex-husband - or, in other words, involved in misconduct, as the disciplined attorney suspected the defendant company was, in infringing his client's intellectual property rights.

All that the disciplining South Carolina court achieved is that people will first hire investigators and, only after investigators conclude their investigation, will hire an attorney, or will engage in any other tricks to simply separate and shield the attorney from the knowledge that an investigator was hired by the party, and that will be the end of it.

The court pretended it legitimately imposed discipline, the attorney accepted a light discipline in order to keep his license no matter whether discipline was fair or legitimate or not, and the bar at large will continue to do the exact same thing, making more precautions against getting caught.

There is one word to describe this disciplinary decision.

Stupid.

My next question would be - who was the defendant in that intellectual property infringement case, and what kind of connections did the defendant have, what kind of strings were pulled to use taxpayer money to commence a disciplinary prosecution on such a stupid subject in the first place, and to bring it to imposition of attorney discipline, second?

The disciplinary case indicates that the court case that has led to discipline was initially commenced in a federal court in Georgia in 2009.

The only case filed in 2009 that Pacer.gov, the official registry of federal court cases, has with attorney Cecil Duff Nolan, Jr. as attorney of record, is this case, for alleged unauthorized use of PVP protected oat seeds.

Here is the full complaint filed in that case:

The only problem that I see with South Carolina case is that the disciplinary case states that the federal case was removed from a federal court in Georgia to South Carolina.

Yet, the docket of the case shows that the case was not removed, but was dismissed with prejudice on stipulation of parties.

To me, this disciplinary case appears to be quite mysterious.

There is, once again, only one case filed in federal court in Georgia in 2009 with Cecil Duff Nolan, Jr. as an attorney of record.  It is, indeed, an intellectual property infringement case where the complaint mentions that the defendants were located in the State of Georgia, but some of them could be located "in other states".

Was it the correct case, was attorney Cecil Duff Nolan Jr. an attorney of record in that federal case, or only in the "removed" case in South Carolina, I do not know.

If he was, the case was not removed.

If he wasn't attorney of record in federal court before the mysterious removal, and only represented the plaintiff in a state court proceeding, it may be a different case.  South Carolina disciplinary opinion does not identify the case, or the name of the client and the client's opponent in that litigation, which extremely confuses the issue - because, once again, the disciplinary decision is so nonsensical that the only plausible explanation for it that it was made for the so-called "extrajudicial reasons" - not for the reasons stated in the decision, but because of some political connections.

In other words, that the disciplinary case was fixed.  To me, that a disciplinary case against an attorney, and especially an out-of-state attorney, was fixed, is not at all a surprise.

It is even more interesting that, as attorney Nolan has reportedly stated in an interview about the case, Georgia law controlled, and in Georgia, his behavior is totally permissible, as well as under ABA rules.

Yet, the mystery is - why? Who pulled the strings and for what reason?  And what power that "somebody" has over the South Carolina Supreme Court and its disciplinary counsel?

I will appreciate tips from readers as to whether the case I found on Pacer.gov is the correct case for which attorney Nolan was punished or not.  As I said, the case I provided here is the only one filed in a federal court in the State of Georgia in 2009 with attorney Nolan as the attorney of record.

And, my question remains - was attorney Cecil Duff Nolan, Jr. disciplined because he was a very good out-of-state trial attorney

who obtained really damaging evidence with the help of private investigators against somebody who had influence upon South Carolina Supreme Court?