¶26. concurring. I concur, reluctantly, in affirming the violation of Rule 4.1 because that rule does expressly, and broadly, prohibit all intentionally dishonest representations by attorneys, even when such misrepresentations are otherwise legal and serve a lawyer’s duty. Our conclusion that technically dishonest conduct strictly on behalf of a client’s legitimate interests violates Rule 4.1 as written, but not Rule 8.4, appears to be at odds with what are otherwise fundamental obligations of government and defense attorneys. Bar counsel insists that no such issue arises here, but the wider impact of this ruling on the investigative operations of the executive branch, and its chilling implications for the public and private defense bar, are inescapable and troubling.
¶27. It seems at least unclear whether the judicial branch, through an ethical rule, might unconstitutionally interfere with valid, and even statutory, executive branch functions directed by attorneys supervising undercover discrimination, consumer fraud, and criminal investigations that require surreptitious taping and deceptive impersonations, including those authorized by warrant. See, e.g., V.R.Pr.C. 8.4(a) (declaring it misconduct for a lawyer to violate the rules “through the acts of another”); V.R.Pr.C. 5.3(b) & (c) (making a supervising lawyer responsible for investigator compliance with the rules and professional obligations of the lawyer). Related separation of powers questions, as well as due process and equal protection issues, arise over judicial curtailment *49of otherwise legal and valid tactics available to public defender investigators looking into criminal allegations against their clients.5
¶ 28. Not presented in an actionable context in the instant appeal, such issues remain unresolved. Equally unresolved, then, is the potential for ethical violation by attorneys involved in law enforcement and criminal defense who, without lucre or malice, oversee entirely legal investigative strategies executed by staff or agents. Failure of the rules to recognize and allow for justified and necessary deception in the course of law enforcement and defense investigation is reminiscent of Secretary of State Henry Stimson’s foolish prohibition of diplomatic codebreaking between the World Wars on the high-minded premise that “Gentlemen do not read each other’s mail.”6 Common sense might dictate that such a blind principle, like Rule 4.1 found violated in the instant case, ignores the legal and objectively legitimate demands of the real world.
¶ 29. These points are raised only to lament the unfortunate absurdity of this violation and to emphasize the need for the committee to reconsider the literal application of Rule 4.1 to executive and defense investigations relating to law enforcement.
Respondents here, for example, were interrupted at almost the last minute of their trial defense of a client charged with second degree murder to immediately respond to an unsolicited claim by a jailhouse tipster of exculpatory evidence implicating another as the murderer. That the tipster, during the phone interview, then expressed concern about being recorded would cause reasonable attorneys to question whether an inmate, a stranger to them and potentially a target of retribution for snitching, would volunteer his proffered information on the record, or could be relied upon to testify to the same effect, or at all, in court. Given the exigent circumstances and the absence of any corrupt motive whatsoever, the inherent uncertainty of the situation was arguably sufficient to justify the surreptitious recording.
H. Stimson & M. Bundy, On Active Service in Peace & War 188 (1948). Secretary of State Stimson (Hoover Administration, 1929-33) yielded his views as Secretary of War Stimson in 1940, citing changing times. D. Kahn, The Codebreakers 360 n.* (1996).