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Basil Rathbone as Sherlock Holmes
The Granger Collection, New York
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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.
Introduction
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.
Recommendations
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.
Conclusion
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).
