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.

            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). 

 

ABA Issues Updated E-mail Guidance

I’ve been writing and lecturing about Internet and e-mail ethics issues since 1998 – there is no shortage of ethics opinions or scholarship on the subject.  This did not dissuade the American Bar Association from issuing its own updated guidance, entitled Securing Communication of Protected Client Information on 11 May, or from revising it eight days later.  And because it’s an ABA opinion, it’s newsworthy.

Most of the headlines surrounding new ABA Formal Opinion 477R (19 May 2017) will focus on the Standing Committee on Ethics and Professional Responsibility’s conclusion that, in some instances, an attorney may be required to use encrypted e-mail, a conclusion it resisted making in its 1999 opinion: Formal Opinion 99-413. 

I’m not interested in summarizing the new ABA opinion – other blogs, including the ABA Journal, have already done that, and more are sure to follow.  (You can read revised Opinion 477R here.  It’s short and time well spent.)  Instead, I would rather use the issuance of ABA 477R as an excuse opportunity riff on the central theme embodied in it. 

First, a little review:

 A Trip Down Memory Lane

Microsoft Founder Bill Gates

It’s mid-1990.  Few lawyers were eager and early adapters of e-mail.  The Bar only “warmed” to electronic communications only because clients demanded it:

In Microsoft’s case, we insist that all of our lawyers have electronic mail.  We won’t deal with them unless we have that kind of access.

Christie and Aarons, Bill Gates Tells Law Firms: No E-mail, No Deal, Colorado Journal, May 23, 1997, p. 2. 

Almost immediately the question arose whether there was an ethical duty to encrypt confidential Internet communications.  Public and private key encryption then was kludgy; clients hated it, and so did lawyers.  The thought that lawyers might have to encrypt e-mail was a bummer.

Fortunately, throughout the 1990s, and with surprisingly few exceptions, one bar after another reached the conclusion that Internet e-mail is reasonably safe, even without encryption.  See Delaware State Bar Ass’n Committee on Professional Ethics Op. 2001-2 (communications by e-mail and cell phones do not violate Delaware Rule 1.6 absent exceptional circumstances, such as where an attorney should reasonably anticipate the possibility of disclosure or interception); Supreme Court of Ohio Board of Commissioners on Grievances and Disputes Opinion 99-2 (April 9, 1999) (encryption of e-mail not required).  Accord N.Y. State Bar Ass’n Committee on Professional Ethics, Opinion 709 (Sept. 16, 1998); D.C. Bar Opinion No. 281 (Feb. 18, 1998); Alaska Bar Ass’n Opinion 98-2 (Jan. 8, 1998); Pennsylvania Bar Ass’n Committee on Legal Ethics and Professional Responsibility Informal Opinion 97-130 (Sept. 26, 1997); Vermont Bar Ass’n Committee on Professional Responsibility Opinion 97-5; Illinois State Bar Ass’n Committee on Professional Ethics Opinion 96-10 (May 16, 1997); South Carolina Bar Ethics Advisory Opinion 97-08 (June 1997); Arizona State Bar Committee on Rules of Professional Conduct Opinion 97-04 (April 7, 1997).

Near the end of this long line, on 10 March 1999, the ABA issued Formal Opinion 99-413.  Coming so late, Opinion 99-413 was not significant for its conclusion, but rather for its weight as the opinion of the author of the Model Rules.  The opinion, however, did a nice job of synthesizing the work that went before it, and in focusing on the overriding issue of the reasonableness of the expectation of confidentiality, instead of Internet as the technology de jour:

The risk of unauthorized interception and disclosure exists in every medium of communication, including e-mail.  It is not, however, reasonable to require that a mode of communicating information must be avoided simply because interception is technologically possible, especially when unauthorized interception or dissemination of the information is a violation of the law.

ABA Opinion 99-413 concluded that Internet e-mail was no less secure than “U.S. and commercial mail, land-line telephonic transmissions, and facsimiles,” and should not be singled out for separate treatment.

Earlier ethics opinions had suggested that the same general precautions and guidelines regarding client communications over cellular telephones and fax machines should apply to Internet e-mail.  See, e.g., Alaska Bar Ass’n Opinion 98-2; Iowa Ethics Opinion 96-1 (1996); North Carolina Ethics Opinion 215 (1995); Colorado Bar Ass’n Opinion 90. 

Surely, consideration of the sensitivity of the communication, and providing cautionary warnings to clients who may not appreciate the potential vulnerability of interception, is good practice in all transmissions over evolving technologies.  However, a pronouncement that the failure to encrypt could subject an attorney to professional discipline in the event of interception – at least absent a clear and convincing showing that the communication was so sensitive that any risk of possible interception is was too great – would have imposed an unacceptable burden on then-burgeoning e-commerce. 

ABA 99-413’s ultimate conclusion that, e-mail encryption was generally not required, was correct for its time.  However, as I wrote in 2003:

[T]he only constant in technology is change.  While the law currently concludes that encryption is not required to protect the confidentiality of routine attorney-client communications sent via e-mail, should SMTP become more vulnerable to interception and/or encryption become easier for clients and lawyers to use, this conclusion should change.  Lawyers everywhere are well advised to . . .  focus not on the medium of the communication, but rather on the exercise of reasonable care.

Charles F. Luce, Jr., Legal Ethics on the Internet, 7 J. of Internet Law 1 (Oct. 2003).  This admonition is also one of the principle precepts of new ABA 477R.

Back the Future: Communication, Confidentiality, & Competence

The First iPhone - 2007

Much has happened since 1999.  This year the iPhone celebrates its tenth anniversary.  The iPad is only three years younger.  We’ve moved from slow dial-up and slightly faster DSL, to blistering broadband and mobile data speeds that match it.  Our work now follows us everywhere – on our commute, to our homes, on vacation, even into the loo.  So do the bad guys, in increasing numbers and with greater ability to hack and intercept our communications. 

Rule 1.4 requires lawyers that communicate regularly with clients to keep them informed, so they are able to make informed decisions regarding their legal matters.  These days those communications occur primarily or exclusively by e-mail.  Cobwebs gather on lawyer’s in-boxes, which now serve mainly as compost collection centers for interoffice and other junk mail.  

Rule 1.6(c) prescribes that client communications must be, and remain, confidential.  Specifically lawyers must “make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.” 

Combined, Rules 1.4 and 1.6 compel that attorneys be competent in the technology they use.  If some lawyers were unable to connect these dots themselves, revisions to the ABA Model Rules since 1999 have made the duty of technological competence explicit.  Comment [6] to Model Rule of Professional Conduct 1.1 states:

To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject.

(Emphasis added.)  Comment [8] to Colo. RPC 1.1 is substantially identical:

To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, and changes in communications and other relevant technologies, engage in continuing study and education, and comply with all continuing legal education requirements to which the lawyer is subject.

(Emphasis added.)    See also Comments [18] and [19] to Colo. RPC 1.6 (discussing at length the duty to “make reasonable efforts to safeguard information relating to the representation of a client against unauthorized access by third parties and against inadvertent or unauthorized disclosure”)

ABA 477R recognizes the evolution of “the role and risks of technology” since 1999, and that “today, many lawyers primarily use electronic means to communicate and exchange documents with clients.”  These communications “now regularly use a variety of devises to create, transmit and store confidential communications” which “offer an opportunity for the inadvertent or unauthorized disclosure of information relating to the representation . . . .”

No kidding.  Last June I recorded a webinar for National Business Institute called Legal Ethics: Smart Phones and Tablets in Legal Practice.  To prepare for this program I immersed myself in the latest means of intercepting communications and protecting communications against unauthorized access.  Moving faster than Moore’s Law, just twelve months later the state of the Spy vs. Spy has already moved on, and will continue to do so. 

As just one example, in June 2016 WhatsApp was considered state-of-the-art for end-to-end encrypted technology.  By March 2017, fresh revelations regarding CIA hacking tools made by WikiLeaks had cast some doubt on that assumption, though encrypted chat apps remain a solidly secure communications link provided the proper protocols are observed by users.

Guiberson’s Law

At one of the first ABA TECHSHOWs I attended I was fortunate enough to take in a presentation by Houston attorney Sam Guiberson. PowerPoint presentations were all the rage that year – the more glittering graphics and animations the better.  But not Sam’s.  Other than having his notes on a laptop discretely shielded by the lectern there was not a slide. 

Sam is not merely a pioneer in the use of technology in law, but also a spell-binding orator.  His deliberate eschewal of technology underscored his presentation’s central theme:  The only skill worth cultivating is adaptability. 

The ABA made audio tapes of every presentation at this TECHSHOW available for $5.  I bought Sam’s and gave it to our firm’s management committee, telling it, “You need to listen to this.”  I wish I had kept the tape myself, but the lesson of Sam’s sermon has stuck with me without the need for auditory reinforcement.

Do you remember MousePerfect? (Heck, do you remember WordPerfect?).  How about QEMM for managing computer memory?  Discovery ZX for DOS?  386 chips?  None of these survive.  My collection of computer antiquities is truly impressive.  They illustrate Guiberson’s Law that the only skill worth cultivating is adaptability – together with the mindset that one must always be alert to change and adapt to it.

This understanding is what led the authors of Opinion 477R to prudently adopt the philosophy of the ABA Cybersecurity Handbook, which:

rejects requirements for specific security measures (such as firewalls, passwords, and the like) and instead adopts a fact-specific approach to business security obligations that requires a “process” to assess risks, identify and implement appropriate security measures responsive to those risks, verify that they are effectively implemented, and ensure that they are continually updated in response to new developments.

How does a busy lawyer find time to keep abreast of the latest developments in communications technology?  She makes time.  She attends technology CLEs, or she hires the expertise to make reasonably certain that client confidential information is appropriately protected.  There is no “pass,” no excuse, for an attorney who uses modern technology to fail to learn how it works, what its vulnerabilities are, and to actively safeguard against the risk of inadvertent or unauthorized disclosure.  It is no more acceptable for an attorney who is not a multiengine turbo rated pilot to offer to fly a client to a business meeting in a Beechcraft King Air, than it is for the same attorney to send the client’s confidential information over unsecured public Wi-Fi without encryption. 

Don't Fly, or Wi-Fi, Without Proper Training

Thus, Revised Opinion 477R spends the bulk of its text focusing not on the technology de jour, but rather on the enduring human factors and suggesting a process by which attorneys can identify and assess communications risks, and “implement appropriate security measures responsive to those risks.” 

Some Wisdom Endures

For several months the Colorado Bar Association has been working to update its Opinion 90, originally published in 1992 – the year after the World Wide Web was launched by CERN and Pretty Good Privacy (PGP) encryption was released by Philip Zimmerman – and long before most lawyers were online.  Today, Opinion 90’s reference to cordless phones and modems is downright quaint.  However, the subcommittee revising the opinion wisely decided to keep its conclusion:

It is impossible to predict how technological advances will alter the means by which communications can be conveyed or intercepted.  However, regardless of technological developments, the attorney must exercise reasonable care to guard against the risk that the medium of the communication may somehow compromise the confidential nature of the information being communicated.

Nothing written before or since so succinctly summarizes the guiding principal for at the dawn of the third millennium.

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.