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| Happy Birthday Revised 8.4(c)! |
The original Rule provided “It is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit or misrepresentation.” To this absolute proscription, in 2017 the Colorado Supreme Court appended “except that a lawyer may advise, direct, or supervise others, including clients, law enforcement officers, or investigators, who participate in lawful investigative activities.” This addition, first proposed by the Court’s Standing Committee on the Rules of Professional Conduct in 2012, was made without any instructive Comment by the Court.
Public response was predictable. Within days one of my Facebook friends posted:
Of course the Court did no such thing. In reMark C. Pautler still stands as a stern cautionary warning that attorneys
may not personally engage in conduct
prohibited by the first clause of Rule 8.4(c).
However, the biennial of the revised rule is about to be celebrated
without any published judicial opinion which might add some clarity to the
exception, now entering its “terrible twos.”
Into this vacuum, in May the Colorado Bar Association’s Ethics
Committee published Opinion 137. As Susanna
Speier, Content Director, Blogger, and Social
Media Strategist for the Denver Private Investigator Blog observed, the “6,195 word Formal
Opinion . . . is not light, late-summer weekend getaway reading material. Slog through
the legalese for a comprehensive discussion and analysis of Rule 8.4 (c)
and it will deepen your understanding of its potential impact on your career as
a Colorado private investigator.” While praising Opinion 137, Ms. Speier
bemoans “the rule's blatant irreverence for
ethical codes that licensed private investigators practicing in the State of
Colorado . . . licenses depend on.” Ms.
Speier is not alone; she has plenty of company among members of the Colorado
Bar.
The rub for many lawyers is
Revised Rule 8.4(c)’s use of the word “direct.”
The verb “direct” may mean “control the operations of; manage or
govern.” However, it may also mean to “give
(someone) an official order or authoritative instruction.” Lexico/Oxford University Press.
There should be no debate over the
wisdom or ethics of an attorney “advising” or “supervising” others “who
participate in lawful investigative activities.” 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 party’s
consent. This is the so-called “the
unilateral consent rule,” one of the great oxymorons of the law. If, however, 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. Similarly, if a law enforcement
official goes too far with a covert operation it may constitute
entrapment. If it does, evidence
gathered will be suppressed and bad people may go free. That is not a good thing. So having lawyers involved in advising and
supervising such activities is good – it safeguards the rights of those who are
surveilled.
It is not, however, an “exception” to the original Rule
8.4(c). 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 was needed. It’s just a lawyer doing her job.
It’s analogous to the situation which Colorado lawyers found
themselves in 2014 – caught between the classification of cannabis as a
Schedule 1 drug under the 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 in issuing Comment [14] to Colo. RPC 1.2, providing guidance and
comfort to lawyers finding themselves caught between the Scylla and Charybdis of
the Controlled Substances Act and Colorado Constitution Article XVIII, secs. 14
& 16. However, no such illuminating Comment
accompanied the revision for Rule 8.4(c).
Absent an official Comment or other judicial guidance, the
concern of many in the Bar is that revised Rule 8.4(c) may be read as permitting
a lawyer to instigate, as oppose to merely advise or supervise covert
operations. Concerned Bar members view
revised Rule 8.4(c) as an invitation to mischief, a slippery slope, a murky
ethical twilight zone, and an almost irresistible temptation for lawyers to personally
engage in conduct which Rule 8.4(c) expressly prohibits. At best, revised Rule 8.4(c) is dangerous
ethical quicksand without clear markers; at worst it may be treated by some lawyers
as a license to evade Pautler,
permitting an end run around Rule 8.4(a)’s proscription against violating the
Rules of Professional Conduct “through the acts of another.” This concern is hardly paranoid. By analogy, courts have for years intently
wrestled with the question of whether, and to what extent, an attorney may ethically
suggest that a client speak directly to an opposing party without running afoul
of Rule 4.2 via Rule 8.4(a)’s
anti-circumvention rule.
An equally adamant segment of the Bar feels that if a lawful
covert or pretextual investigation is appropriate and good legal advice, why
shouldn’t an attorney be free to recommend that a client undertake it, the same
way a lawyer ought to suggest that a car accident victim seek a medical opinion
for soft-tissue injuries? To them it
seems unnecessarily constraining and contrived to have to hope that a client
will sua sponte ask about the
advisability of retaining an investigator, or engaging in a lawful covert or
pretextual investigation. Surely
compliance with ethics codes should not turn on a lawyer’s creativity in dropping
coy hints, such as adorning client conference rooms with portraits of Hercule
Poirot, Sherlock Holmes, Miss Marple, Sam Spade, Philip Marlowe, Johnny Dollar,
and Frank Columbo.
Does revised Rule 8.4(c) permit attorneys to skip such
subterfuge and initiate the suggestion that their clients engage in lawful covert
or pretextual investigative activities, so long as the lawyer does not
personally participate? Where is the
line to be drawn between “directing” and personal participation? In the absence of any official Comment or
judicial decision, a “slog” through Ethics Opinion 137 is worth the effort –
even required reading. No, it’s not
light summer fare, but alas, summer is over.
