This was so predictable. I knew this was going to happen. So did Jim Coyle and several others who testified before the Colorado Supreme Court at the 14 September hearing on this proposed change to Colo. RPC 8.4:
Rule 8.4 Misconduct
It is professional misconduct for a lawyer to:
(c) engage in conduct involving dishonesty, fraud, deceit, or misrepresentation, except that a lawyer may advise, direct, or supervise others, including client, law enforcement officers, or investigators, who participate in lawful investigative activities.
To paraphrase Garrett Morris, “CHEEZO has been berry berry good to me.” Beginning last December, it’s been the main ingredient for three blog posts, a Law 360 editorial, and a Colorado Law Week article. I’m quoted again this week in the print edition of Colorado Law Week regarding the now-issued rule. But barring new developments, this is the last morsel.
On Thursday, 28 September the Colorado Supreme Court adopted the proposed rule change, unaltered. The Denver Post accurately reported this the following day. By Monday morning the Facebook post reproduced above hit my friend feed. I had to respond, explaining that, no, lawyers may not “now engage in conduct involving dishonesty, fraud, deceit, or misrepresentation when advising law enforcement officers . . . .” Rather, the rule change simply states that lawyers may now advise, direct, and supervise others who have always been free to engage in covert operations and subterfuge, provided those activities are lawful, without fear of being professionally disciplined for violating Rule 8.4(c).
This is a good thing. There are myriad state and federal laws which must be navigated to lawfully conduct covert operations. For example, in Colorado an ordinary citizen (but not a lawyer) may record a conversation without the other parties’ consent. This is the so-called “the unilateral consent rule,” one of the great oxymorons of the law. However, if the same citizen accesses their spouse’s Gmail account because they know the password, or because their spouse left their browser open, they’ve violated the federal Stored Communications Act. If a law enforcement official goes too far with a covert operation it constitutes entrapment. Evidence gathered will be suppressed and the bad guys will go free. That’s a bad thing. So having lawyers involved in advising, directing, and supervising such activities is good – it safeguards the rights of those who are surveilled.
It is not, however, an “exception” to the prohibition against attorneys engaging “in conduct involving dishonesty, fraud, deceit, or misrepresentation.” Providing legal advice to help others conform their actions to the law is not “conduct involving dishonesty, fraud, deceit, or misrepresentation” for which an exception is needed. It’s just a lawyer doing her job.
It’s analogous to the situation in which Colorado lawyers found themselves in 2014 – caught between the inane, yet persistent, classification of cannabis as a Schedule 1 drug under the federal Controlled Substances Act, and the fact that cultivation, distribution, possession, and consumption of marijuana is lawful under the Colorado Constitution. Since the licensure and regulation of attorneys remains, at least for now, the sole province of the states, of course Colorado attorneys should be permitted to advise Colorado citizens and government officials regarding the laws regulating marijuana. It would be ludicrous to suggest otherwise. Indeed, a compelling argument can be made that Colorado attorneys have an ethical duty to provide such counsel. The Colorado Supreme Court – or at least a narrow majority – felt the same way and issued what I called A Curious Comment, providing guidance and comfort on this issue to lawyers in Comment  to Colo. RPC 1.2.
Yet against the advice of some of those testifying, the court issued its rule regarding covert operations as an “exception” to Rule 8.4(c), which it is clearly not. More egregiously, the amended rule fails to fully address the CHEEZO problem for the reasons I spelled out in my comments to the court. Having drawn a road map for the defense bar to continue to use the Rule of Professional Conduct as an offensive weapon against attorneys who provide such advice and counsel, it’s only a matter of time before the issue will be back before the court.
If my Facebook friends are incredulous at this rule change, it’s not because they are uninformed or illiterate. Rather, it is it’s because the court knowingly invited such criticism by slapping a Band-Aid® on the CHEEZO problem instead drafting a comprehensive rule, such as one I suggested be adopted in my testimony – a new Rule 8.4(i):
(i) It is not misconduct or a violation of the rules of professional conduct for a lawyer to advise, direct, or supervise others, including clients, law enforcement officers, or investigators, who participate in lawful investigative activities, or to recommend the employment of an investigator or the use of lawful investigative techniques.
Why did the court do what it did? Unlike Comment  to Colo. RPC 1.2, from which Justice Coats and Justice Eid expressly dissented, the proposed rule change was unanimously adopted by the court, so amended Rule 8.4(c) does not appear to be a creature of compromise. Law Week Colorado reports that Colorado Attorney General Cynthia Coffman, whose ultimatum – to “abandon all of her pending undercover investigations” unless the court addressed the issue – was the impetus for the amendment, praised the change.
To ethicists, however, the court’s fix is an egregious drafting error, and extremely shortsighted. The court had an opportunity to consider and fully address the CHEEZO problem. Instead, it fouled off the pitch. The adopted rule is not a strike, but it’s not a hit, and lawyers in the stands who advise covert operations are at risk of being hit. As I told the reporter for Law Week Colorado, the new rule is “Better than nothing, but not much better.”