Saturday, June 10, 2017

CHEEZO Rides Again!

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 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.