CHEEZO: The Last Morsel

This was so predictable.  I knew this was going to happen.  So did Jim Coyle and several others who testified before the Colorado Supreme Court at the 14 September hearing on this proposed change to Colo. RPC 8.4:

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.

Garrett Morris

To paraphrase Garrett Morris, “CHEEZO has been berry berry good to me.”  Beginning last December, it’s been the main ingredient for three blog posts, a Law 360 editorial, and a Colorado Law Week article.  I’m quoted again this week in the print edition of Colorado Law Week regarding the now-issued rule.  But barring new developments, this is the last morsel.

 

On Thursday, 28 September the Colorado Supreme Court adopted the proposed rule change, unaltered.  The Denver Post accurately reported this the following day.  By Monday morning the Facebook post reproduced above hit my friend feed.  I had to respond, explaining that, no, lawyers may not “now engage in conduct involving dishonesty, fraud, deceit, or misrepresentation when advising law enforcement officers . . . .”  Rather, the rule change simply states that lawyers may now advise, direct, and supervise others who have always been free to engage in covert operations and subterfuge, provided those activities are lawful, without fear of being professionally disciplined for violating Rule 8.4(c).

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 parties’ consent.  This is the so-called “the unilateral consent rule,” one of the great oxymorons of the law.  However, if 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.  If a law enforcement official goes too far with a covert operation it constitutes entrapment.  Evidence gathered will be suppressed and the bad guys will go free.  That’s a bad thing.  So having lawyers involved in advising, directing, and supervising such activities is good – it safeguards the rights of those who are surveilled.

It is not, however, an “exception” to the prohibition against attorneys engaging “in conduct involving dishonesty, fraud, deceit, or misrepresentation.”  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 is needed.  It’s just a lawyer doing her job. 

It’s analogous to the situation in which Colorado lawyers found themselves in 2014 – caught between the inane, yet persistent, classification of cannabis as a Schedule 1 drug under the federal 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 and issued what I called A Curious Comment, providing guidance and comfort on this issue to lawyers in Comment [14] to Colo. RPC 1.2.

Yet against the advice of some of those testifying, the court issued its rule regarding covert operations as an “exception” to Rule 8.4(c), which it is clearly not.  More egregiously, the amended rule fails to fully address the CHEEZO problem for the reasons I spelled out in my comments to the court.  Having drawn a road map for the defense bar to continue to use the Rule of Professional Conduct as an offensive weapon against attorneys who provide such advice and counsel, it’s only a matter of time before the issue will be back before the court.   

If my Facebook friends are incredulous at this rule change, it’s not because they are uninformed or illiterate.  Rather, it is it’s because the court knowingly invited such criticism by slapping a Band-Aid® on the CHEEZO problem instead drafting a comprehensive rule, such as one I suggested be adopted in my testimony – a new Rule 8.4(i):

(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.

Why did the court do what it did?  Unlike Comment [14] to Colo. RPC 1.2, from which Justice Coats and Justice Eid expressly dissented, the proposed rule change was unanimously adopted by the court, so amended Rule 8.4(c) does not appear to be a creature of compromise.  Law Week Colorado reports that Colorado Attorney General Cynthia Coffman, whose ultimatum – to “abandon all of her pending undercover investigations” unless the court addressed the issue – was the impetus for the amendment, praised the change.   

To ethicists, however, the court’s fix is an egregious drafting error, and extremely shortsighted.  The court had an opportunity to consider and fully address the CHEEZO problem.  Instead, it fouled off the pitch.  The adopted rule is not a strike, but it’s not a hit, and lawyers in the stands who advise covert operations are at risk of being hit.  As I told the reporter for Law Week Colorado, the new rule is “Better than nothing, but not much better.”

 

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 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.

Who Moved The CHEEZO? - Using Ethics Rules to Make the Internet Safe for Child Molesters

Cheezo, Mascot of the Child Sex Offender Internet Investigations Unit

Many Coloradans are waking up this morning wondering how criminal defense attorney Phil Cherner managed to shut down a highly successful Child Sex Offender Internet Investigations Unit using the Colorado Rules of Professional Conduct, which prescribe minimum ethical standards for Colorado attorneys.

Mike and Cassandra Harris, a married couple, developed the Child Sex Offender Internet Investigations Unit (“CSOII”), informally known as “CHEEZO,” in 2005.  Housed in the offices of the Jefferson County District Attorney, the Harrises and another investigator have posed as children online to engage, identify, and arrest pedophiles who use the World Wide Web as their stalking field. 

Since its inception, CHEEZO has made 924 arrests, 57 this year alone.  Getting Internet child predators off the streets is a good thing, right?  So who can blame the public for thinking that, if attorney ethics rules can be used to make the Internet safe for child molesters, surely “the law is a ass—a idiot.”

Few Colorado lawyers, however, will be surprised by this development.  Most will recall the extreme case of Mark Pautler (People v. Pautler, 47 P.3d 1175 (Colo. 2002)).  

On June 8th, 1998, Chief Deputy District Attorney Mark Pautler arrived at a grisly crime scene.  Three women lay murdered in an apartment, their skulls cleaved by blows from a wood splitting maul.  A short time later, a few miles away, a similar scene unfolded.  In a second apartment the killer, William Neal, had murdered a fourth victim in the same brutal manner in front of a fifth victim, who he later raped.  The fifth victim, together with two of her friends, were held hostage by Neal for over 30 hours. 

 

After recording the details of his rampage on tape Neal fled the apartment, leaving instructions with the hostages to call police and to have them page him when they arrived.  When Paulter arrived at this second crime scene Neal was in the wind, but on the phone – Deputy Sheriff Cheryl Moore kept Neal talking for three-and-a-half hours, hoping to negotiate his surrender before he struck again or disappeared entirely. 

 

William Neal, Convicted Axe Murderer

Neal told Moore he would not surrender without speaking to legal counsel.  Specifically, Neal asked to speak with a particular public defender, Daniel Plattner, who had previously represented him.  Plattner, however, could not be found – his phone was disconnected, and Pautler believed Plattner had left the practice of law.  Fearful that more deaths could be imminent or that Neal might escape, Mark Pautler decided to impersonate a fictitious public defender, "Mark Palmer," a name Pautler chose himself.  After speaking with “Palmer” and negotiating the terms of his surrender, Neal was taken into custody without further incident.

 
For his deception, Pautler was suspended from the practice of law by the Colorado Supreme Court.  Notwithstanding the extreme circumstances faced by Pautler, the court held “This rule and its commentary are devoid of any exception. Nor do the Rules distinguish lawyers working in law enforcement from other lawyers, apart from additional responsibilities imposed upon prosecutors.”

The problem for Pautler was that Colo. RPC 8.4(c) prohibits an attorney from engaging “in conduct involving dishonesty, fraud, deceit or misrepresentation,” even when not acting as an attorney.  Pautler was also found to have violated Rule 4.3, which provides that “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.”

The problem for the Harrises, who are not lawyers, is that CHEEZO is housed in the offices of the Jefferson County District Attorney.  Colo. RPC 5.3(b) provides that “a lawyer having direct supervisory authority over the nonlawyer shall make reasonable efforts to ensure that the person’s conduct is compatible with the professional obligations of the lawyer.”  Thus, while law enforcement officers may lawfully use pretext as an investigative tool, and routinely do, a law enforcement officer operating under the direction of an attorney, much less a district attorney, may not.

The hardline approach taken by the Colorado Supreme Court, while not universally adhered to by all states, is not an aberration.  The same year the disciplinary complaint was filed against Mark Pautler, the Oregon Supreme Court considered similar conduct, this time involving a private attorney, in In re Gatti, 330 Or. 517, 8 P.3d 966 (Or. 2000). 

There, a private attorney misrepresented himself as a chiropractor during the course of an alleged fraud investigation.  The United States Attorney for the District of Oregon, appearing as amicus curiae, joined by the Oregon Attorney General, urged the court to recognize a “prosecutorial exception” which would exempt “government attorneys who advise, conduct or supervise legitimate law enforcement activities that involve some form of deception or covert operations.”  8 P.3d at 974-975.  The Oregon Supreme Court declined this invitation to create a judicial exception to the traditional view in absolute terms:

            As members of the Bar ourselves--some of whom have prior experience as government lawyers and some of whom have prior experience in private practice--this court is aware that there are circumstances in which misrepresentations, often in the form of false statements of fact by those who investigate violations of the law, are useful means for uncovering unlawful and unfair practices, and that lawyers in both the public and private sectors have relied on such tactics.  However, ORS 9.490(1) provides that the rules of professional conduct “shall be binding upon all members of the bar.”  (Emphasis added.)  Faithful adherence to the wording of DR 1-102(A)(3), DR 7- 102(A)(5), ORS 9.527(4), 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. 

Id. at 976.  (Underlined emphasis in original; other emphasis added.)

The Gatti case did in fact lead to such a debate, and to a rule change in Oregon.  Following the adoption of the Model Rules of Professional Conduct by Oregon, this exception was incorporated as Oregon RPC 8.4(b):

            Notwithstanding paragraphs (a)(1), (3) and (4) and Rule 3.3(a)(1), it shall not be professional misconduct for a lawyer to advise clients or others about or to supervise lawful covert activity in the investigation of violations of civil or criminal law or constitutional rights, provided the lawyer's conduct is otherwise in compliance with these Rules of Professional Conduct. "Covert activity," as used in this rule, means an effort to obtain information on unlawful activity through the use of misrepresentations or other subterfuge. "Covert activity" may be commenced by a lawyer or involve a lawyer as an advisor or supervisor only when the lawyer in good faith believes there is a reasonable possibility that unlawful activity has taken place, is taking place or will take place in the foreseeable future.

(Emphasis added.)  The Oregon Rule does not allow an attorney to personally act as the undercover investigator, only to advise and supervise nonlawyers regarding covert activities.

The Oregon rule is refreshingly direct compared with the sometimes Rube Goldberg-like approach and the “then a miracle occurs” logic gaps often found in well-intentioned judicial opinions struggling to reconcile the inflexible prose of lawyer’s codes with the interests of justice and realities of the modern world.  It has the further advantage of involving, or at least not excluding, lawyers – who are and ought to be held to a higher ethical standard – from the tasks of advising clients and others about or supervising lawful covert activities.  American political experience has repeatedly demonstrated that covert activities have a propensity to run amok.  There is no reason to believe that excluding attorneys from advisory or supervisory roles will improve this situation.  Further, to the extent the Rules of Professional Conduct are rooted in public expectations regarding the legal profession, most of the public would be shocked to learn that lawyers may not supervise law enforcement officers in conducting pretextual investigations on peril of suffering professional discipline.

District Attorney Peter Weir

In contrast to Oregon’s Rule 8.4(b), Colorado’s Rules of Professional Conduct continue to admit no exception which would allow attorneys to supervise investigators conducting covert activities without risking prosecution by the Office of Attorney Regulation.  As District Attorney Peter Weir and the CHEEZO task force have learned, law enforcement officers who engage in pretextual investigations are on their own.  Perhaps the experience with CHEEZO will finally prompt a long-overdue debate regarding the roll of attorneys in overseeing covert operations by law enforcement in Colorado.