Sunday, October 22, 2017

What happened to the Colorado Attorney’s Lien Statutes?

Google Snippet

One of the earliest ethics articles I published on the Web – nearly 20 years ago – was titled Lean on Me: Making Sense (and Dollars) of the Colorado Attorney's Lien Statutes.  It’s a timeless article in at least two respects:

First, at the time I wrote it, the attorney’s lien statutes, passed in 1903, had remained unaltered for 95 years.  I once asked a colleague why this was, given their dense and confusing language.  His response, perhaps tongue-in-cheek, was that the Bar was afraid if it asked the legislature to update them, it would repeal them instead.

Second, of all I have written about Colorado legal ethics and the practice of law, I have probably received more calls and thank -yous regarding this article than any other.  That’s staying power.  This week it was a “featured snippet” at the top of the Google’s rankings for the search:  Colorado attorney's liens.  I suspect that may be more a function of Internet longevity than quality, but I have a confession to make:  I wrote this article for myself.  The attorney’s lien statutes and interpretive case law is such a mosh pit that every time an attorney’s lien issue arose I had to relearn the law.  The article is, in truth, a legal memorandum to myself.  It is merely a happy coincidence that others have found it useful.

With this background, imagine my surprise when my partner and co-chair of MoyeWhite’s Law Practice Professionals Group, Eric Liebman, stuck his head in my door a few days ago and asked:

“What happened to the attorney’s lien statutes?”
“What?” I asked.

“They’re gone,” Eric explained.  “I just looked up Sections 12-5-119 and -120, and they’ve been repealed.”

“My God,” I thought, “they finally went and did it!” Raising one eyebrow in the tradition of Mr. Spock, I replied, “Interesting.”
A few days later the mystery was solved.  Sections 12-5-119 and -120, C.R.S. were, in fact, repealed.  However, they were concurrently reenacted as §§ 13-93-114 and -115.  Colorado Senate Bill 17-227 moved the attorney’s lien statutes from Title 12, which compiles statutes regarding certain professions and occupations, to a new Article 93 in Colorado Revised Statues Title 13, which concerns courts and the law.

Consolidating the statutes relating to the practice of law is logical, and the attorney’s lien statutes survived the move nearly intact.  I did notice two minor changes:

First, everywhere the statute formerly said “his” it now says “his OR HER.”  This kind of change in the name of political correctness drives English language traditionalists crazy.  One might be led to believe this update was required because there were no female members of the Colorado Bar in 1903.  There were.

Mary Sternberg Thomas and Josephine Moody Luthe were both admitted to the Colorado Bar in 1891.  Ann Hunt was the first female graduate of a Colorado law school (DU) in 1894.  See Vivian Epstein, History of Colorado’s Women for Young People, p. 41 (1978). 

Josephine Luthe
Josephine Luthe’s first court appearance was widely reported in breathless, tabloid style.  The account published in The Topeka State Journal on 11 July 1892 (and in numerous other papers from Ohio to California) described the novelty of a woman before the Bar: 

Mrs. Luthe appeared to good advantage in a closely fitting gown of dark green and a jaunty hat, not made ridiculous by tufts of feathers and impossible flowers.  A whole court room full of lawyers heard her examination of the witnesses, which she carried on in the same regular form which characterizes the old practitioner, and while her voice wavered a little at times, it was evident she had full command of the situation.  . . . Mrs. Luthe, having first taken off her hat, disclosing a glorious supply of auburn hair, commenced her talk to the delighted jurymen, and no syllable or gesture was lost upon them.

Excepted from Women at the Bar,” The Law Student’s Helper, vol. 1, no. 6, p. 139 (June 1893).

Mary Florence Lathrop
Mary Florence Lathrop joined this admittedly small Colorado Women’s Bar in 1895, becoming the first woman to open a law office in Denver.  She set up shop in the Equitable Building, where I first officed, too.  She was the first woman to try a case to the Colorado Supreme Court, and one of the first two women accepted to the American Bar Association in 1918.  Lathrop also “passed the Colorado Bar in 1896 with a score that would stand as a record until 1941.”

Headnote 2 to the Colorado Supreme Court’s opinion granting Mary Sternberg Thomas’ petition for admission to the bar states:

The use of the masculine pronoun exclusively in the statues relating to application for admission the bar and to licensed attorneys is not sufficient to show a legislative intent to exclude women from the bar.

The Equitable Building
Of course it wasn’t.  Both in 1891 and 2017 even casual students of English know that the masculine pronoun includes the feminine.  As Chief Justice Helm wrote in his opinion granting Mary Thomas’ petition for admission:

The masculine pronoun is constantly used in legal and secular literature to designate both sexes; besides, it is expressly provided by law here, as in other States, that, unless the language contains something inconsistent therewith, this rule may be followed in construing statues: “Every word importing the masculine gender may extend to and be applied to females as well as males.”  Mills, Ann. Stat. § 4185.

The intrusion of so-called “gender equity” politics into grammar is unnecessary tokenism of the worst kind.  Perhaps it is a peculiar malady of the legal mind – the same affliction that causes lawyers to include, as standard contract boilerplate, clauses like “Pronouns in masculine, feminine, and neuter genders shall be construed to include every other gender, and words in the singular form shall be construed to include the plural and vice versa, unless the context otherwise requires.” 

I commend the drafters of Senate Bill 17-227 for not diving headlong into the P.C. tank.   They might have substituted Spivak pronouns or other gender-neutral neologisms, which would have left future historians wondering why Coloradans in the early 21st century had suddenly reverted to Middle English.  The drafters also eschewed changing all gender-specific pronouns to “they,” a practice which has gained some traction as a gender-neutral pronoun in some instances, even among respected English scholars, such as Charles Harrington Elster.  The goal of statutory drafting should be clarity, not kowtowing to the latest politically correct fad.  Clarity depends on the use of accepted conventions, and avoiding wordiness.  Frankly, I don’t care if you change all the “hims” to “hers.”  Just pick one and stick with it.  Leave the quest for the perfect gender-neutral pronoun to others.

The other change to the attorney’s lien statutes is that “which” has been replaced by “that” in the first sentence of Section 13-93-115.  This change is more defensible.  Grammarians recognize that American English favors the use of “that” in “restrictive” (or “defining”) clauses, and limits the use of “which” to nonrestrictive (or non-defining) clauses.  A restrictive clause is one that contains essential information about the noun that comes before it.  A nonrestrictive clause contains extra information which, if omitted, does not affect the meaning or structure of the sentence.  In contrast, British English uses “which” and “that” interchangeably, depending upon which sounds better.  (The Oxford Dictionaries has a good article on this distinction.)  I wonder whether the Fourteenth Session of the Colorado General Assembly was more simply influenced by British English.  Regardless, it’s a change that should not offend even the English majors among us.

Despite these changes, at least for now the Colorado Attorney’s Lien Statutes are safe from oblivion, provided you can find them.

Saturday, October 14, 2017

CHEEZO: The Last Morsel

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.

Garrett Morris
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 [14] 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 [14] 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.”


Friday, September 29, 2017

Colorado Supreme Court Hears Argument on the "Cheezo Rule"

Cheezo with Cheese

Those of you who receive the print version of Law Week Colorado can read my report of the argument before the Colorado Supreme Court on the "Cheezo Rule" in this week's edition.  Everyone else will have to settle for this excerpt.

I'm not sure why Law Week Colorado does not offer even a pay-gated version of its print articles, but it's a great newspaper, and wonderful to work with as a writer.  Subscribe today!

Saturday, September 16, 2017

Remarks to the Colorado Supreme Court on Proposed Change to Rule 8.4(c)

Basil Rathbone as Sherlock Holmes
The Granger Collection, New York

   Last Thursday the Colorado Supreme Court convened to hear testimony on a proposed amendment to Colorado Rule of Professional Conduct 8.4(c).  The amendment would clarify that attorneys may provide advice, supervise, and direct lawful covert and pretextual investigations.  

The proposed rule arises out of the CHEEZO case which I previously blogged about last December, and again in June, and contributed an editorial to Law 360 in February.


Here is the text of the proposed rule change:

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.

Interested individuals were each allowed 5 minutes to testify.  My summary of the hearing will appear in the 25 September edition of Law Week Colorado, excluding my own remarks, since it is journalistically unseemly to report on oneself.  My remarks to the court are reproduced below.


            Baseball and hot dogs.  The Broncos and late Monday nights.  Some things just naturally go together.  Like lawyers and private investigators.  The hand-in-glove fit of this pairing is obvious to anyone who grew up watching Perry Mason.  Perry had the glamour job of grilling the witnesses, but it was his investigator, Paul Drake, who supplied the heat.

             The Problem

            In the 30+ years I have been writing about and teaching legal ethics, however, a significant cloud has threatened this happy union: the use of a lawful investigative technique known as pretexting, that is, assuming a false identity or engaging in other deception to acquire evidence from those who would be evasive or not forthcoming if the investigator’s or law enforcement official’s true identity and motives were known.

The problem is created by what I call “The Algebra of Rules of Professional Conduct.”  The Algebra of the Rules works like this:  

  • In the course of representing a client, a lawyer shall not knowing make a false statement of material fact . . . to a third person [RPC 4.1]
  • 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. [RPC 4.3]
  • It is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit or misrepresentation. [RPC 8.4(c)]
  • a lawyer having direct supervisory authority over the nonlawyer [must] make reasonable efforts to ensure that the person’s conduct is compatible with the professional obligations of the lawyer [RPC 5.3(b)]
  • and the final linchpin: It is professional misconduct for a lawyer to violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another.  [RPC 8.4(a)]

    Duplicity by Lawyers

        This court made clear in its Pautler decision that duplicity will not be tolerated in an attorney, even in a good cause –even if the attorney believes that using pretext is literally a matter of life and death.

        Two years before Pautler, Oregon, where I studied law, adopted a similar absolutist approach in In re Gatti [1].  There a private attorney misrepresented himself as a chiropractor during the course of an alleged fraud investigation.  Declining pleas from the Bar to create a so-called “prosecutorial exception,” the Oregon Supreme Court held:
Faithful adherence to the [Code of Professional Responsibility] 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.
        Thereafter, the Oregon State Bar proposed, and the Oregon Supreme Court adopted, DR 1-102(D), creating an express exception allowing attorneys to advise and supervise otherwise lawful covert activities.  This exception is now embodied in Oregon RPC 8.4(b).

        The issue of pretexting by lawyers is important because the ranks of law enforcement are filled with a significant number of attorneys.  Law is one of the 5 main areas from which the FBI recruits Special Agents.  And as anyone who follows Blue Bloods knows, even the cop on the beat may have a Harvard law degree.
        Since the adoption of the Model Rules, ethicists – such as David Isbell & Lucantonio Salvi [2]– have attempted to devise an algorithm through the Algebra of the Rules to justify the ongoing and prudent practice of federal attorneys advising law enforcement officials engaged in investigations.  It is a treacherous path.  For whether Jamie Reagan goes undercover, or simply provides legal advice to those who do, he and other lawyers in law enforcement jeopardize their professional licenses by engaging in activities that nonlawyers may lawfully conduct with impunity.  And in Colorado, like most states, surrendering one’s law license is not an option.  Once a lawyer, forever and at all times a lawyer – even unto death.

               Mere Supervision by Lawyers

              The Algebra of the Rules is not limited to pretextual or covert conduct committed by lawyers.  The dual linchpins of Rules 5.3(c) and 8.4(a) place in professional peril any attorney who merely oversees such investigative activities.  That is the reality which caused Attorney General Coffman to file her Petition for an Original Writ, which resulted in the Proposed Rule we are gathered to discuss today.  Jamie Reagan and FBI Special Agents with law degrees will just have to wait their turn.

             The Algebra of the Rules has spawned serious, unintended negative consequences.  The vicarious professional risk of advising, directing, or supervising covert or pretextual activities has succeeded in clearing the field of legal oversight.  Last December this Algebra threatened the continued existence of a lawful and highly successful online sting operation merely because it was being run out of the office of the District Attorney of the First Judicial District.  When the Rules of Professional Conduct can be so perverted, however briefly, to make the Internet safe for child predators, and when the expedient ethical solution is to remove all legal oversight, Mr. Bumble’s low opinion of our profession sadly has some merit.

                It is said that the wheels of justice turn slowly, but grind exceedingly fine.  I am grateful this court is finally giving the issue of attorney involvement in lawful investigative activities its day.  However, this court has a bit more grinding to do.

               First, it is inappropriate to append the Proposed Rule change as an exception to Rule 8.4(c).  That rule prohibits an attorney from “engag[ing] in conduct involving dishonesty, fraud, deceit or misrepresentation.”  Providing legal advice or supervision to those engaged in lawful investigative activities is none of these things.  On the contrary, it is among the highest duties of our profession, for without such oversight persons untrained in law may easily, though innocently, infringe the rights of those under investigation.   Treating the Proposed Rule change as an “exception” presupposes that, but for the exception, advising and supervising those who participate in “lawful investigative activities” constitutes “dishonesty, fraud, deceit or misrepresentation.”  It does not.  This is an entirely proper and important role for attorneys.  To suggest otherwise by negative inference is not mere fallacy, it denigrates those attorneys who perform these functions today even in the shadow of potential professional discipline.

            Second, treating the Proposed Rule as an exception to only Rule 8.4(c) is inadequate.  It fails to address the other rules I identified, all of which are drawn in by Rule 8.4(a)’s anti-circumvention provision.  The Proposed Rule, at a minimum, requires its own subsection.

            Third, the Proposed Rule does not expressly address whether an attorney may suggest or recommend employment of a private investigator, or the use of lawful covert or pretextual investigative techniques.  While this concern may seems a bit paranoid, other courts have earnestly wrestled with the question of whether, and to what extent, an attorney may suggest that her client speak directly to an opposing party with running afoul of Rule 4.2 because of the anti-circumvention rule.  No attorney should have to hope her client will spontaneously raise the question of the advisability of retaining an investigator, or be forced to resort to dropping hints, such as by adorning client conference rooms with portraits of Hercule Poirot, Sherlock Holmes, Miss Marple, Sam Spade, Johnny Dollar, and Frank Columbo.

If this court is prepared to authorize a lawyer to advise clients and others regarding lawful investigative techniques, it should also make clear that the advice to engage an investigator and employ such techniques is also permitted. 

         Because of these concerns, I propose this court adopt a new Rule 8.4(i) which provides:

(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.

[1] 330 Or. 517, 8 P.3d 966 (Or. 2000)
[2]  Ethical Responsibility of Lawyers for Deception by Undercover Investigators and Discrimination Testers:  An Analysis of the Provisions Prohibiting Misrepresentation Under the Model Rules of Professional Conduct, 8 Georgetown Journal of Legal Ethics 791, 818-19 (1995).