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| CHEEZO Rides Again! |
CHEEZO
is a gift that keeps on giving, at least for this blogger.
I
first wrote last December
about a criminal defense attorney’s use of the Colorado Rules of Professional
Conduct to make the Internet safe for child predators. CHEEZO’s story went national, which led to an
invitation from Law360 to contribute
an updated
article to its excellent Legal Ethics
Section in February. Then, with two new
blogs in production, this week CHEEZO again caught the public’s attention. My comments on ABA
Opinion 477R will just have to wait.
Earlier
this week the Colorado Supreme Court posted a Notice of Public Hearing and Request for Comments
on a proposed change to Colo.
RPC 8.4(c).
ABA Rule 8.4 is the primary basis on which attorneys have been
disciplined for conducting or directing pretextual investigations. The proposed change is one I
have been advocating for since 1999, and was the subject of the very
first article posted on ColoradoLegalEthics.com
in April 2012.
The proposed rule change would
revise Rule 8.4 by adding an exception to the end of subsection (c):
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 clients, law enforcement officers, or investigators, who
participate in lawful investigative activities;
No other
changes are proposed, either to Rule 8.4’s Comments or other rules. The deadline for submitting written comments is 5 September 2017. The hearing is
scheduled for 14 September at 1:30 p.m.
The court
was stirred to action by a Petition for Original Writ Under C.A.R. 21
(“Petition”) filed 5 May 2017 by Colorado Attorney General Cynthia Coffman
seeking “a court order enjoining [Attorney Regulation Counsel] from proceeding
against a government lawyer solely for supervising or providing legal advice to
assist with a lawful undercover investigation.”
Petition at 8.
It’s about
time.
The Colorado Supreme Court has ignored this important
issue for decades, despite periodic pleas from the U.S. Attorney for the
District of Colorado, whose members frequently supervise the activities of
federal agents engaged in undercover and pretextual investigations, and occasional
criticism from this author and others.
The Oregon Supreme Court addressed this issue 15
years ago, amending its Rule 8.4 in 2002, although not before receiving harsh criticism
following the hardline position it took in In re Gatti., 330 Or. 517, 8 P.3d
966 (Or. 2000). In re Gatti adopted a zero-tolerance policy against lawyer pretexting,
similar to that taken by the Colorado Supreme Court two years later in In
the Matter of Mark C. Pautler, 47 P.3d 1175 (2002). However, whereas the Colorado Supreme Court followed
Oregon’s lead in brooking no exception to Rule 8.4’s prohibition against “conduct
involving dishonesty, fraud, deceit or misrepresentation,” it took no action to
fix the problem until the filing of Attorney General Coffman’s Petition, which announced
that the Attorney General’s Office was suspending all undercover operations
until the court acts on the Petition.
The proposed
amendment to Colo. RPC 8.4(c) is similar to, though more succinct, than Oregon RPC 8.4(b). Neither permits an attorney to personally act
as an undercover investigator, only to advise and supervise nonlawyers
regarding covert activities. The
approach is somewhat analogous to that taken by the Colorado Supreme Court in adopting
Comment
[14] to Colo. RPC 1.2, which brokered a solution to the ethical Symplegades
faced by Colorado lawyers, namely that the illegality of marijuana cultivation
and distribution under the federal Controlled Substances Act seemingly barred
attorneys from counseling clients regarding Colorado’s complex cannabis regulations,
even though the Colorado Constitution makes such activities legal. (I blogged on this topic in A Curious Comment: The
Colorado Supreme Court Addresses the Pot Paradox.)
Does the proposed
change go far enough, either in providing guidance to Colorado lawyers or
serving the ends of justice? I haven’t
decided yet. The only thing certain is this:
I know what I’m doing at 1:30 p.m. on 14 September.
