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.

A Curious Comment: The Colorado Supreme Court Addresses the Pot Paradox

The Dome of the Ralph Carr Justice Center

This past Monday the Colorado Supreme Court addressed, but did not fully resolve, an ethical paradox which has been troubling lawyers since Colorado’s constitution was amended in 2000 to legalize the use of marijuana for medical purposes – with a footnote.

Technically the court added Comment [14], effective immediately, to the end of Colorado Rule of Professional Conduct 1.2:

[14] A lawyer may counsel a client regarding the validity, scope, and meaning of Colorado constitution article XVIll, secs. 14 & 16, and may assist a client in conduct that the lawyer reasonably believes is permitted by these constitutional provisions and the statutes, regulations, orders, and other state or local provisions implementing them.  ln these circumstances the lawyer shall also advise the client regarding related federal law and policy.  (Emphasis added.)

Both the Colorado Supreme Court’s Standing Committee on the Rules of Professional Conduct and the Colorado Bar Association’s Ethics Committee had recommended that the court provide such clarification because of the untenable conflict created between federal law, under which marijuana is classified as a Schedule I controlled substance, and Colorado’s constitutional legalization of marijuana, first  for medical, and later for recreational, use. 

Colo. RPC 1.2 states:

(d) A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law. (Emphasis added.)

The practical effect of Rule 1.2(d) is to place Colorado attorneys in disciplinary peril if they counsel or assist clients who are engaging in activities that are not merely lawful under Colorado law, but constitutionally protected.

In some ways, it is appropriate that the court relegated its handing of this issue to equivalent of an ethical footnote.  It would be patently absurd for the members of the court, who have both plenary authority over the admission and regulation of attorneys in Colorado, as well as a duty to support Colorado’s constitution, to effectively deprive Colorado citizens of the ability to obtain legal advice regarding activities which are constitutionally protected in Colorado.  It is a curious Comment, nevertheless. 

First, it is mildly curious that the court’s guidance came in the form of a Comment and not a Rule.  The Bar and the court’s own Standing Rules Committee had each urged the court to adopt a new Rule 8.6 which would expressly authorize attorney assistance of marijuana clients, as well as a new Comment to Rule 8.4 which would have provided a safe harbor for attorneys using cannabis either medically or recreationally.  In adopting a single Comment, the court seemed to side with James Coyle, head of Colorado’s Office of Attorney Regulation Counsel, who publicly stated, “I don’t think there is a need for the new rule.” 

Why a Comment and not a Rule?  Under the Colorado Rules of Professional Conduct, Comments are instructive, but not a basis for imposing attorney discipline.  “Comments do not add obligations to the Rules but provide guidance for practicing in compliance with the Rules.”  Colo. RPC Scope [14].  “The Comment accompanying each Rule explains and illustrates the meaning and purpose of the Rule. . . . The Comments are intended as guides to interpretation,” and are “sometimes used to alert lawyers to their responsibilities under such other law,”  “but [it is] the text of each Rule [which] is authoritative.” Id. [15] & [21].

Adopting a Comment, rather than adding or amending a Rule, is consistent with the purpose of Comments to “alert lawyers to their responsibilities under such other law.”  Indeed, new Comment [14] not only alerts attorneys to the existence of contrary federal law, it mandates that “the lawyer shall also advise the client regarding related federal law and policy.”  This, too, is curious. 

Consistent with the dichotomy between Rules and Comments described in the Scope of the Rules, the word “shall” appears only a handful of times in all the Comments, and virtually always in reference to a Rule.  This oddity in new Comment [14], and its architecture, suggests it may have been originally drafted as a Rule.

Buttressing this speculation is third curiosity: the court’s statement that “Justice Coats and Justice Eid would not approve Comment [14].”  I am unaware of any other Comment or Rule in the Colorado Rules of Professional Conduct to which a justice has expressly dissented.  With open dissent in its ranks, it is not inconceivable that, to secure the necessary votes of four justices, Comment [14] was originally drafted as a Rule, but relegated to a Comment as the result of a brokered compromise.

Justices Coats’ and Eid’s dissent reflects an earnest debate regarding the legality and ethics of advising and assisting clients regarding Colorado’s marijuana laws which has been ongoing in the Bar for over a decade.  It is a sincere difference of opinion, regarding which ethicists and regulators may reasonably disagree. 

On the one hand, under federal law, marijuana is a controlled substance, the manufacture, distribution, dispensing, and possession of which are crimes.  21 U.S.C. §§841(a) & 844(a).  Based on federal supremacy, many ethicists convincingly argue that – regardless of one’s opinion of the historic, political, and policy alchemy that resulted in cannabis being classified as a Schedule I controlled substance – Colorado lawyers (and judges) swear an oath to support both the federal and state constitutions, and are thus ethically prohibited from counseling or assisting clients to engage in conduct which the lawyer knows is criminal, regardless what Colorado’s constitution says. 

On the other hand – excepting appearances before federal courts and agencies – the admission and regulation of attorneys is one of the last bastions of exclusive state jurisdiction.  Relying in part on the Tenth and First Amendments, other equally convicted ethicists persuasively contend that it would be absurd if lawyers were subject to professional discipline for advising and assisting persons engaged in activities authorized under state law.  While some in the former group cynically dismiss the views of the latter as ethics by expedience – being a tendentious justification to cash in on the Acapulco Gold Rush – neither group can fairly claim to hold the higher moral or ethical ground. 

Thus far, the opinions of ethics bodies reflect this split.  Compare Arizona Ethics Op. 11-0 (Feb. 2011) (“A lawyer may ethically counsel or assist a client in legal matters expressly permissible under the Arizona Medical Marijuana Act . . . despite the fact that such conduct potentially may violate applicable federal law.”) with Connecticut Informal Ethics Op. 2013-02 (Jan. 2013) (“It is our opinion that lawyers may advise clients of the requirements of the Connecticut Palliative Use of Marijuana Act. Lawyers may not assist clients in conduct that is in violation of federal criminal law.”) and Maine Ethics Op. 199 (July 2010) (attorneys must adhere to the letter of Rule 1.2(d)).

Comment [14] is also notable for what it does not address: an attorney’s personal use of marijuana, either medically or recreationally.  The Report of the Amendment 64 Subcommittee of the Colorado Supreme Court’s Standing Committee on the Rules of Professional Conduct recommended that the court adopt new Comment [2A] to Rule 8.4 to sanction personal use of marijuana by lawyers, but the court did not.  Given the 5-2 split among the justices on new Comment [14] it is not surprising a majority did not coalesce around adding a Comment that, despite its somber legalese, would have undoubtedly spawned headlines like, “Court to Bar: ‘Party on Garth!’” 

The court may have also thought such a Comment was unnecessary.  The thoughtful and thorough analysis set forth in Opinion 124 of the Colorado Bar’s Ethics Committee, regarding a lawyer’s use of medical marijuana, is equally applicable to an attorney’s recreational use.  With deft and due consideration given to all viewpoints, Opinion 124 concludes “a lawyer’s medical use of marijuana in compliance with Colorado law does not, in and of itself, violate Colo. RPC 8.4(b).  Rather, to violate Colo. RPC 8.4(b), there must be additional evidence that the lawyer’s conduct adversely implicates the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects.”  Echoing a similar view, an April 26, 2013 Memorandum from the Colorado Office of Attorney Regulation states “OARC has not viewed conduct involving personal use of small amounts of marijuana, standing along, as a violation of Colo. RPC 8.4(b).  Any reflection on the attorney’s fitness to practice is not significant enough to warrant discipline or diversion.”

Of course, neither new Comment [14], the public position of the OARC, nor the opinions of the Colorado Bar Association’s Ethics Committee can dispel the elephant in the room:  the successful demonization of cannabis instigated by HarryJ. Anslinger has cast a shadow nearly 80 years long which continues to shape federal drug policy towards marijuana. 

For this reason, there is no guaranty that the U.S. District Court for Colorado will endorse the views expressed in Comment [14], and good reason to believe it will not.  The federal district court exercises independent authority over those admitted to practice before it, and has its own Attorney Rules.  Although these Rules expressly adopt the Colorado Rules of Professional Conduct for most purposes, when, in 1999, the Colorado Supreme Court amended its Rules of Civil Procedure and Rules of Professional Conduct to permit attorneys to offer “unbundled legal services,” the U.S. District Court balked, expressly excluding all such changes from its Standards for Professional Conduct. 

Because federal marijuana law remains unaltered, the U.S. District Court may feel compelled to similarly disavow Comment [14].  However, because Comment [14] is not automatically adopted under the current iteration of D.C.COLO.LAttyR2, a second public rift between the Colorado federal and state benches may be avoided.  Further, any advice and assistance attorneys may render to clients regarding marijuana matters will overwhelmingly be transactional in nature, not litigation advice.  Any civil litigation which may arise from marijuana, for example, a breach of contract action, may be brought in state courts.  Accordingly, attorneys practicing before Colorado federal courts should be able to do so comfortably within the confines of Colo. RPC 1.2(d).

The immutable bottom line is that Colorado law is directly at odds with federal law.  The manufacture, distribution, dispensing, and possession of cannabis are federal crimes.  For now, the Department of Justice’s guidance on investigative and prosecutorial discretion, expressed in the so-called “Cole Memorandum,” means that Colorado attorneys have little to fear in representing marijuana clients so long as they act within the bounds of Colorado’s marijuana laws.  Nor is there much concern that blowing a little grass on the weekend will result in a Colorado attorney facing criminal penalties or professional discipline.  That said, as long as gulf between federal and Colorado law persists, the party for lawyers and their clients could be over in a single election.