Happy Birthday Revised Rule 8.4(c) — What now?

Happy Birthday Revised 8.4(c)!

Revised Colo. Rule of Professional Conduct 8.4(c) turns two years old on September 28.

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.

Originally published in the 30 September 2019 edition of Law Week Colorado

Colorado's Revised Rule 8.4(c) (or What I've Been Doing the Last 9 Months)

Whew!

As I wrote last September, my blogging time has been reduced to nearly zero for over a year due to a number of projects I committed to.  

Chief among these was chairing a subcommittee of the Colorado Bar Association’s Ethics Committee charged with drafting an opinion to provide guidance on the effect of the Colorado Supreme Court’s revised Rule 8.4(c), about which I have written extensively.  It was an incredibly time-consuming, but also an extremely rewarding task.  I essentially functioned as discussion leader, chief architect, and editor-in-chief for a group of the brightest, hardest-working members of the Ethics Committee I have had the pleasure know and honor to lead.

Writing this opinion was only half the battle — gaining approval from the entire Ethics Committee was the other half.  An earnest and vigorous debate in the Committee ensued over the wisdom of revised Rule 8.4(c), which now allows a Colorado attorney to "advise, direct, or supervise others, including clients, law enforcement officers, or investigators, who participate in lawful investigative activities."  

The opinion ultimately passed, and has just been published on the Colorado Bar Association's Ethics website as Colo. Bar Ass'n Ethics Formal Op. 137, Advising, Directing, and Supervising Others in Lawful Investigative Activities That Involve Dishonesty, Fraud, Deceit, or Misrepresentation (May 2019).  You can read it here.

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Also, my weakness for really, really good German food has gotten the best of me again.  After swearing off creating any new CLE programs this year so I could get back to blogging, my friends at NBI made me the one offer I can't seem to refuse: an all-expense paid return to the Winzer Stube German Restaurant in Hudson, Wisconsin this August for the low, low price of creating and recording a new national ethics webinar.  It should be a fun program as it is on one of my favorite topics.  It's called Attorney Ethics of E-mail and Texting: Essential Do's and Don'ts.  You can register for it here.


I've also been invited back to teach social media ethics at CBA-CLE's terrific two-and-a-half-day program, Successfully Launching and Running Your Own Practice.  The program, formerly known as Hanging Your Own Shingle (apparently that phrase is become anachronistic), is geared to law school graduates and others seeking to open their own law practice.  It includes a wealth of practical and legal information, as well as great marketing opportunities.  This year the program, now in its 19th year, will be held Thursday - Saturday, 8-10 August.  I'm speaking Friday afternoon.  CLE has not yet posted information about this year's edition, but you can get a good sense of it from the 2018 agenda, which is still up.


So, you know what I'll be doing this summer . . . writing, writing, creating PowerPoint presentations, and more writing.  In the meantime I continue to collect a lifetime of blog topic ideas.  

Maybe this fall . . .

Have a great summer, all!

(Only) Tempus Fugit

HOLY COW! – it’s been nearly a year since I posted a blog.  An accounting for such a long sabbatical seems in order.

It’s not that I have stopped writing about ethics; far from it.  Nor, sadly, have I been off flying instead of writing.  Tempus fugit, non mihi.   So what the heck have I been doing?

Well, first I developed a brand new continuing legal education program for National Business Institute, which I recorded in Wisconsin last Monday.  It’s called Legal Ethics of Handling Digital Documents, and is scheduled for release as a national webinar on 24 October (register for it here).  Believe me, researching and writing a 40 page outline, and then creating 185 PowerPoint slides for filming, is a whole lot of work.

Why do I do it?  Two words:  Winzer Stube.

Winzer Stube is a fabulous German restaurant located in Hudson, Wisconsin that I discovered with Ron Nemirow when we flew out to record an NBI webinar a few years ago.  Read my Trip Advisor review for all the scrumptious details. It’s so good, I even bought the t-shirt. 

Winzer Stube is conveniently located directly en route between KMSP (where NBI flies its speakers into) and Altoona, Wisconsin (where NBI’s studios are located).  Bribe me with great schnitzel, spaetzli, authentic German beer, and apfelstrudel and I’m your guy.

 
Also, this spring I agreed to chair a subcommittee of the Colorado Bar

 Association’s Ethics Committee to draft an opinion explaining the effect of the Colorado Supreme Court’s change to Rule 8.4(c), about which I have written extensively.  The opinion will explore the legal and ethical issues that arise when an attorney gets involved in pretextual investigations.  The first draft is nearly done, and the hard work of editing is about to commence.  If the Committee approves it, expect to see a formal opinion next spring.

  

Last (and most fun), this summer I agreed to assemble and chair the panel of ethicists who provide the “meat and potatoes” analysis to the cotton candy that is The Law Club’s annual Ethics Review.  Produced by CLE of Colorado, this year’s review will once again be held at Lannie’s Clocktower Cabaret, located in basement of the historic Daniels & Fisher Tower in downtown Denver, 13 and 14 November.  There’s also a special noon matinee in Boulder on 29 November.  CLE has not posted the advert for the Ethics Review yet, however here’s taste of what’s in store – a teaser video from 2010 show (yours truly appears for a fleeting moment at 0:24). 

We’ve got a great panel this year including, for ONE NIGHT ONLY (14 November), Jessica Yates, the Colorado Supreme Court’s new Attorney Regulation Counsel.  If you have never been to the Ethics Review, it is the easiest, most fun way to accumulate those precious CLE ethics credits ever invented.  Be sure to tip your waiters and bartender.

 

With so much still on my plate, the sabbatical from blogging will continue for the foreseeable future.  Fear not, though – I have 34 great topics warehoused, just waiting to be written.

Prost!

What happened to the Colorado Attorney’s Lien Statutes?

Google Snippet

One of the earliest ethics articles I published on the Web – nearly 20 years ago – was titled Lean on Me: Making Sense (and Dollars) of the Colorado Attorney's Lien Statutes.  It’s a timeless article in at least two respects:

First, at the time I wrote it, the attorney’s lien statutes, passed in 1903, had remained unaltered for 95 years.  I once asked a colleague why this was, given their dense and confusing language.  His response, perhaps tongue-in-cheek, was that the Bar was afraid if it asked the legislature to update them, it would repeal them instead.

Second, of all I have written about Colorado legal ethics and the practice of law, I have probably received more calls and thank -yous regarding this article than any other.  That’s staying power.  This week it was a “featured snippet” at the top of the Google’s rankings for the search:  Colorado attorney's liens.  I suspect that may be more a function of Internet longevity than quality, but I have a confession to make:  I wrote this article for myself.  The attorney’s lien statutes and interpretive case law is such a mosh pit that every time an attorney’s lien issue arose I had to relearn the law.  The article is, in truth, a legal memorandum to myself.  It is merely a happy coincidence that others have found it useful.

With this background, imagine my surprise when my partner and co-chair of MoyeWhite’s Law Practice Professionals Group, Eric Liebman, stuck his head in my door a few days ago and asked:

“What happened to the attorney’s lien statutes?”

“What?” I asked.

“They’re gone,” Eric explained.  “I just looked up Sections 12-5-119 and -120, and they’ve been repealed.”

“My God,” I thought, “they finally went and did it!” Raising one eyebrow in the tradition of Mr. Spock, I replied, “Interesting.”

A few days later the mystery was solved.  Sections 12-5-119 and -120, C.R.S. were, in fact, repealed.  However, they were concurrently reenacted as §§ 13-93-114 and -115.  Colorado Senate Bill 17-227 moved the attorney’s lien statutes from Title 12, which compiles statutes regarding certain professions and occupations, to a new Article 93 in Colorado Revised Statues Title 13, which concerns courts and the law.

Consolidating the statutes relating to the practice of law is logical, and the attorney’s lien statutes survived the move nearly intact.  I did notice two minor changes:

First, everywhere the statute formerly said “his” it now says “his OR HER.”  This kind of change in the name of political correctness drives English language traditionalists crazy.  One might be led to believe this update was required because there were no female members of the Colorado Bar in 1903.  There were.

Mary Sternberg Thomas and Josephine Moody Luthe were both admitted to the Colorado Bar in 1891.  Ann Hunt was the first female graduate of a Colorado law school (DU) in 1894.  See Vivian Epstein, History of Colorado’s Women for Young People, p. 41 (1978). 

Josephine Luthe

Josephine Luthe’s first court appearance was widely reported in breathless, tabloid style.  The account published in The Topeka State Journal on 11 July 1892 (and in numerous other papers from Ohio to California) described the novelty of a woman before the Bar: 


Mrs. Luthe appeared to good advantage in a closely fitting gown of dark green and a jaunty hat, not made ridiculous by tufts of feathers and impossible flowers.  A whole court room full of lawyers heard her examination of the witnesses, which she carried on in the same regular form which characterizes the old practitioner, and while her voice wavered a little at times, it was evident she had full command of the situation.  . . . Mrs. Luthe, having first taken off her hat, disclosing a glorious supply of auburn hair, commenced her talk to the delighted jurymen, and no syllable or gesture was lost upon them.

Excepted from “Women at the Bar,” The Law Student’s Helper, vol. 1, no. 6, p. 139 (June 1893).

Mary Florence Lathrop

Mary Florence Lathrop joined this admittedly small Colorado Women’s Bar in 1895, becoming the first woman to open a law office in Denver.  She set up shop in the Equitable Building, where I first officed, too.  She was the first woman to try a case to the Colorado Supreme Court, and one of the first two women accepted to the American Bar Association in 1918.  Lathrop also “passed the Colorado Bar in 1896 with a score that would stand as a record until 1941.”

Headnote 2 to the Colorado Supreme Court’s opinion granting Mary Sternberg Thomas’ petition for admission to the bar states:

The use of the masculine pronoun exclusively in the statues relating to application for admission the bar and to licensed attorneys is not sufficient to show a legislative intent to exclude women from the bar.

 The Lawyers Report Annotated, Book XIII (1891). 

The Equitable Building

Of course it wasn’t.  Both in 1891 and 2017 even casual students of English know that the masculine pronoun includes the feminine.  As Chief Justice Helm wrote in his opinion granting Mary Thomas’ petition for admission:

The masculine pronoun is constantly used in legal and secular literature to designate both sexes; besides, it is expressly provided by law here, as in other States, that, unless the language contains something inconsistent therewith, this rule may be followed in construing statues: “Every word importing the masculine gender may extend to and be applied to females as well as males.”  Mills, Ann. Stat. § 4185.

The intrusion of so-called “gender equity” politics into grammar is unnecessary tokenism of the worst kind.  Perhaps it is a peculiar malady of the legal mind – the same affliction that causes lawyers to include, as standard contract boilerplate, clauses like “Pronouns in masculine, feminine, and neuter genders shall be construed to include every other gender, and words in the singular form shall be construed to include the plural and vice versa, unless the context otherwise requires.” 

I commend the drafters of Senate Bill 17-227 for not diving headlong into the P.C. tank.   They might have substituted Spivak pronouns or other gender-neutral neologisms, which would have left future historians wondering why Coloradans in the early 21^st century had suddenly reverted to Middle English.  The drafters also eschewed changing all gender-specific pronouns to “they,” a practice which has gained some traction as a gender-neutral pronoun in some instances, even among respected English scholars, such as Charles Harrington Elster.  The goal of statutory drafting should be clarity, not kowtowing to the latest politically correct fad.  Clarity depends on the use of accepted conventions, and avoiding wordiness.  Frankly, I don’t care if you change all the “hims” to “hers.”  Just pick one and stick with it.  Leave the quest for the perfect gender-neutral pronoun to others.

The other change to the attorney’s lien statutes is that “which” has been replaced by “that” in the first sentence of Section 13-93-115.  This change is more defensible.  Grammarians recognize that American English favors the use of “that” in “restrictive” (or “defining”) clauses, and limits the use of “which” to nonrestrictive (or non-defining) clauses.  A restrictive clause is one that contains essential information about the noun that comes before it.  A nonrestrictive clause contains extra information which, if omitted, does not affect the meaning or structure of the sentence.  In contrast, British English uses “which” and “that” interchangeably, depending upon which sounds better.  (The Oxford Dictionaries has a good article on this distinction.)  I wonder whether the Fourteenth Session of the Colorado General Assembly was more simply influenced by British English.  Regardless, it’s a change that should not offend even the English majors among us.

Despite these changes, at least for now the Colorado Attorney’s Lien Statutes are safe from oblivion, provided you can find them.