Saturday, December 17, 2016

Who Moved The CHEEZO? - Using Ethics Rules to Make the Internet Safe for Child Molesters

Cheezo, Mascot of the Child Sex Offender Internet Investigations Unit
Many Coloradans are waking up this morning wondering how criminal defense attorney Phil Cherner managed to shut down a highly successful Child Sex Offender Internet Investigations Unit using the Colorado Rules of Professional Conduct, which prescribe minimum ethical standards for Colorado attorneys.

Mike and Cassandra Harris, a married couple, developed the Child Sex Offender Internet Investigations Unit (“CSOII”), informally known as “CHEEZO,” in 2005.  Housed in the offices of the Jefferson County District Attorney, the Harrises and another investigator have posed as children online to engage, identify, and arrest pedophiles who use the World Wide Web as their stalking field. 

Since its inception, CHEEZO has made 924 arrests, 57 this year alone.  Getting Internet child predators off the streets is a good thing, right?  So who can blame the public for thinking that, if attorney ethics rules can be used to make the Internet safe for child molesters, surely “the law is a ass—a idiot.”

Few Colorado lawyers, however, will be surprised by this development.  Most will recall the extreme case of Mark Pautler (People v. Pautler, 47 P.3d 1175 (Colo. 2002)).  

On June 8th, 1998, Chief Deputy District Attorney Mark Pautler arrived at a grisly crime scene.  Three women lay murdered in an apartment, their skulls cleaved by blows from a wood splitting maul.  A short time later, a few miles away, a similar scene unfolded.  In a second apartment the killer, William Neal, had murdered a fourth victim in the same brutal manner in front of a fifth victim, who he later raped.  The fifth victim, together with two of her friends, were held hostage by Neal for over 30 hours. 
After recording the details of his rampage on tape Neal fled the apartment, leaving instructions with the hostages to call police and to have them page him when they arrived.  When Paulter arrived at this second crime scene Neal was in the wind, but on the phone – Deputy Sheriff Cheryl Moore kept Neal talking for three-and-a-half hours, hoping to negotiate his surrender before he struck again or disappeared entirely. 
William Neal, Convicted Axe Murderer
Neal told Moore he would not surrender without speaking to legal counsel.  Specifically, Neal asked to speak with a particular public defender, Daniel Plattner, who had previously represented him.  Plattner, however, could not be found – his phone was disconnected, and Pautler believed Plattner had left the practice of law.  Fearful that more deaths could be imminent or that Neal might escape, Mark Pautler decided to impersonate a fictitious public defender, "Mark Palmer," a name Pautler chose himself.  After speaking with “Palmer” and negotiating the terms of his surrender, Neal was taken into custody without further incident.

For his deception, Pautler was suspended from the practice of law by the Colorado Supreme Court.  Notwithstanding the extreme circumstances faced by Pautler, the court held “This rule and its commentary are devoid of any exception. Nor do the Rules distinguish lawyers working in law enforcement from other lawyers, apart from additional responsibilities imposed upon prosecutors.”

The problem for Pautler was that Colo. RPC 8.4(c) prohibits an attorney from engaging “in conduct involving dishonesty, fraud, deceit or misrepresentation,” even when not acting as an attorney.  Pautler was also found to have violated Rule 4.3, which provides that “In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested.”

The problem for the Harrises, who are not lawyers, is that CHEEZO is housed in the offices of the Jefferson County District Attorney.  Colo. RPC 5.3(b) provides that “a lawyer having direct supervisory authority over the nonlawyer shall make reasonable efforts to ensure that the person’s conduct is compatible with the professional obligations of the lawyer.”  Thus, while law enforcement officers may lawfully use pretext as an investigative tool, and routinely do, a law enforcement officer operating under the direction of an attorney, much less a district attorney, may not.

The hardline approach taken by the Colorado Supreme Court, while not universally adhered to by all states, is not an aberration.  The same year the disciplinary complaint was filed against Mark Pautler, the Oregon Supreme Court considered similar conduct, this time involving a private attorney, in In re Gatti, 330 Or. 517, 8 P.3d 966 (Or. 2000). 

There, a private attorney misrepresented himself as a chiropractor during the course of an alleged fraud investigation.  The United States Attorney for the District of Oregon, appearing as amicus curiae, joined by the Oregon Attorney General, urged the court to recognize a “prosecutorial exception” which would exempt “government attorneys who advise, conduct or supervise legitimate law enforcement activities that involve some form of deception or covert operations.”  8 P.3d at 974-975.  The Oregon Supreme Court declined this invitation to create a judicial exception to the traditional view in absolute terms:

            As members of the Bar ourselves--some of whom have prior experience as government lawyers and some of whom have prior experience in private practice--this court is aware that there are circumstances in which misrepresentations, often in the form of false statements of fact by those who investigate violations of the law, are useful means for uncovering unlawful and unfair practices, and that lawyers in both the public and private sectors have relied on such tactics.  However, ORS 9.490(1) provides that the rules of professional conduct “shall be binding upon all members of the bar.”  (Emphasis added.)  Faithful adherence to the wording of DR 1-102(A)(3), DR 7- 102(A)(5), ORS 9.527(4), and this court’s case law does not permit recognition of an exception for any lawyer to engage in dishonesty, fraud, deceit, misrepresentation, or false statements.   In our view, this court should not create an exception to the rules by judicial decree.  Instead, any exception must await the full debate that is contemplated by the process for adopting and amending the Code of Professional Responsibility. 

Id. at 976.  (Underlined emphasis in original; other emphasis added.)

The Gatti case did in fact lead to such a debate, and to a rule change in Oregon.  Following the adoption of the Model Rules of Professional Conduct by Oregon, this exception was incorporated as Oregon RPC 8.4(b):

            Notwithstanding paragraphs (a)(1), (3) and (4) and Rule 3.3(a)(1), it shall not be professional misconduct for a lawyer to advise clients or others about or to supervise lawful covert activity in the investigation of violations of civil or criminal law or constitutional rights, provided the lawyer's conduct is otherwise in compliance with these Rules of Professional Conduct. "Covert activity," as used in this rule, means an effort to obtain information on unlawful activity through the use of misrepresentations or other subterfuge. "Covert activity" may be commenced by a lawyer or involve a lawyer as an advisor or supervisor only when the lawyer in good faith believes there is a reasonable possibility that unlawful activity has taken place, is taking place or will take place in the foreseeable future.

(Emphasis added.)  The Oregon Rule does not allow an attorney to personally act as the undercover investigator, only to advise and supervise nonlawyers regarding covert activities.

The Oregon rule is refreshingly direct compared with the sometimes Rube Goldberg-like approach and the “then a miracle occurs” logic gaps often found in well-intentioned judicial opinions struggling to reconcile the inflexible prose of lawyer’s codes with the interests of justice and realities of the modern world.  It has the further advantage of involving, or at least not excluding, lawyers – who are and ought to be held to a higher ethical standard – from the tasks of advising clients and others about or supervising lawful covert activities.  American political experience has repeatedly demonstrated that covert activities have a propensity to run amok.  There is no reason to believe that excluding attorneys from advisory or supervisory roles will improve this situation.  Further, to the extent the Rules of Professional Conduct are rooted in public expectations regarding the legal profession, most of the public would be shocked to learn that lawyers may not supervise law enforcement officers in conducting pretextual investigations on peril of suffering professional discipline.

District Attorney Peter Weir
In contrast to Oregon’s Rule 8.4(b), Colorado’s Rules of Professional Conduct continue to admit no exception which would allow attorneys to supervise investigators conducting covert activities without risking prosecution by the Office of Attorney Regulation.  As District Attorney Peter Weir and the CHEEZO task force have learned, law enforcement officers who engage in pretextual investigations are on their own.  Perhaps the experience with CHEEZO will finally prompt a long-overdue debate regarding the roll of attorneys in overseeing covert operations by law enforcement in Colorado.

Thursday, August 18, 2016

Restatement of the Obvious

“A lawyer who serves notice upon an adverse party in compliance with the provisions of a contract for serving notices does not violate Rule 4.2.”  Restatement of the Obvious, § 101.

Every so often one encounters an argument so breathtakingly and originally imbecilic that no legal authority exists to refute it.  Whenever this occurred one of my former partners bemoaned that the American Law Institute had never published a Restatement of the Obvious, with one or two additional adjectives, which should not be repeated in a blog which strives for decorum, thrown in for good measure.  Such arguments are typically born of desperation or profound ignorance of the law.  While normally confined to substantive areas of the law, such as contracts or torts, the law of lawyering is not immune from this phenomenon.

In keeping with a tradition of providing lighter ethics fare in the summer, I offer now the first installment of an occasional feature: The Restatement of the Obvious.  Today’s installment is ripped from the pages of a recent successful, though not particularly challenging, defense of an attorney-client [1] to a Request for Investigation (“RFI”) filed with the Colorado Supreme Court’s Attorney Regulation Counsel (“OARC”).  The facts are these:

My client, who I shall call “Attorney X” (as in “X-asperated”), represented a landlord in commercial lease negotiations with a company (“Tenant”).  Tenant was represented in the negotiations by competent counsel, “Attorney TC” (for “Tenant’s Counsel”).  

The lease provided that “[a]ll notices, which Landlord or Tenant may be required or may desire to serve on the other shall be in writing and shall be delivered . . .  addressed as set forth in the Basic Lease Provisions . . . .”  In turn, the Basic Lease Provisions provided that notices by the landlord must be served upon Tenant with a “simultaneous copy” to Attorney TC. 
Approximately two years after its execution a dispute arose when Tenant failed to pay its share of the building’s operating expenses.  Tenant countered that the landlord had failed to provide certain required maintenance services.  The landlord declared a default and Attorney X send a Landlord’s Notice of Default letter to Tenant and to Attorney TC, as required by the lease. 
building’s operating expenses.

The Notice of Default was utterly vanilla – it merely cited the terms of the lease of which Tenant was alleged to be in default, Tenant’s right to request an audit of its share of operating expenses, the landlord’s right to recover interest on unpaid rent, the amount claimed due and owing on the date of the Notice, and invited Tenant to invoke its right to conduct a formal audit.  Nothing more – no threats of litigation or otherwise, no offers of settlement.

In response to the Notice of Default, Complainant, Tenant’s President, filed an “Ethics Complaint,” more formally known as a Request for Investigation, with OARC.  Complainant’s letter to OARC stated in part:

I find it quite concerning that [Attorney X] knew at the time, [sic] that I was represented by [Attorney TC], (as evidenced by the [Notice of Default] letter co-addressed to [Attorney TC]), and still he had the temerity to send both [Attorney TC] and I [sic] the default letter simultaneously.

OARC notified Attorney X that a Request for Investigation had been made alleging that Attorney X had “improperly contacted [Complainant’s] company directly despite knowing that the company was represented by counsel.  The facts and circumstances set forth by [Complainant] implicate Colorado Rule of Professional Conduct 4.2 (communication with person represented by counsel).”  Attorney X was directed to respond within twenty-one days explaining why he sent a letter directly to Tenant and Attorney TC.

Whatever else lawyers may forget from their study of “Legal Profession,” Rule 4.2 seems to be the lesson that sticks.  Colorado has adopted the ABA Model Rule verbatim:

 In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order.
Colo. RPC 4.2 (Emphasis added).  The inapplicability of Rule 4.2 here is patent:

First, the lease both authorized and required notices of default to be served upon Tenant “with a simultaneous copy to” Attorney TC.  The notice provision, negotiated by Attorney TC, constituted both a lease requirement and consent of Tenant’s counsel to this manner of providing notice.  Accordingly, the “consent of the other lawyer” to service of the Notice of Default on Tenant was implicit, if not express, under the terms of the lease.

Further, twelve days after the Notice of Default was mailed, Attorney X received a letter from Attorney TNC (for “Tenant’s New Counsel”), establishing that Tenant was not represented by Attorney TC in connection with lease dispute.  Having had no contact with Attorney TC in connection with the lease in over a year, Attorney X did not “know” that Tenant was “represented by another lawyer in the matter,” i.e., the lease dispute, a condition to the applicability of Rule 4.2.  See Colo. RPC 1.0 (f) (“[K]nows “denotes actual knowledge of the fact in question.”)  Thus, even if one could credibly argue that the lease terms only authorized the landlord, and not its counsel, to draft and serve notices of default, Rule 4.2 was inapplicable.
Having been apprised all the circumstances, OARC took no further action, concluding in a letter to Complainant:

[Attorney X] notes in response . . . that the [Notice of Default] was sent directly to [Tenant] with a copy to [Attorney TC] because the underlying lease required such notice.  To the extent the lease authorized notice in this form, the contact cannot be found to a Rule violation.
Further, [Attorney X] denies that at the time [the Notice of Default was sent] he knew that you were represented by [Attorney TC].  [Attorney X] notes that another lawyer, [Attorney TNC], notified him that he was representing [Tenant] with regard to the lease dispute, and subsequent to such notification all communication has been through [Attorney TNC].
Contracts often include a provision prescribing the manner in which notices are to be given.  Such provisions routinely state that notice must be simultaneously given to a party’s counsel.  Some also include a mechanism for changing the individual and/or address to which notice is to be given.  However, I have never seen a notice provision that expressly stated, or felt the need to state, that a required notice could be given either by a party or its attorney.  Perhaps in the absence of the Restatement of the Obvious, they should.

The terms of the lease in this case did not expressly provide that the Notice of Default could be served by landlord’s counsel.  However, a construction of Rule 4.2 which would require a contract to expressly include such a provision would be ludicrous.  Taken to its illogical conclusion, such a construction would also prohibit a party from receiving assistance of counsel in drafting a contractually required notice, since such assistance would be a violation of Colo. RPC 8.4(a), which prohibits circumventing the Rules of Professional Conduct “through the acts of another.”  Here, Attorney TC, if not Tenant, understood that notices of default are drafted by lawyers, not their clients, and consented in advance to this manner of service.  While a Restatement of the Obvious would be useful in such situations, let us be thankful it was not needed.

[1] My client graciously consented to disclosing the facts of his case in the interest of advancing ethics education.  See Colo. RPC 1.6(a).