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).