February 29, 2008
News & Events
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Don?t Be Deceived ? It?s Not a Simple Matter: The Use of Deception by Law Enforcement Attorneys and Rule 8.4(c)
Chris Toth, Acting Executive Director and Allison Frisbee, NAAG Legal Intern
The use of deception by law enforcement personnel has been a time-honored tactic in gaining the upper hand on criminals in the furtherance of justice. Undercover operations, for example, by their nature are completely rooted in deception. Without the use of undercover operations, some of law enforcement’s greatest successes in fighting such problems as organized crime, drugs, and corruption would not have occurred. Deception has met with success in other contexts as well, such as ruses where letters are sent to those wanted on warrants apprising them they have an unclaimed lottery prize or have won tickets to a professional sporting event, and only need to come pick them up – at a place where police in fact will oblige them with their arrest.
Indeed, at an intuitive level, it seems to go without saying that such tactics by law enforcement attorneys are perfectly proper, and that such attorneys should even be commended for their aggressiveness in taking the fight to the bad guys. However, the use of deception by law enforcement attorneys is not as straightforward as it may seem at first blush. Certain legal developments in various states over the past decade have made it difficult to provide an easy answer as to whether the use of deception is permissible under the ethical regulations of various states. While some states have directly addressed the issue, many others have not. For this reason, the use or authorization of deception should be carefully considered, and the government attorney should ensure that such use comports with the professional code of conduct for his or her state.
The Use of Deception by Police Distinguished
The permissibility of the use of deception by law enforcement officials who are not attorneys, such as police and special agents, is not in question. The right of law enforcement officials to practice deception in undercover operations was established by the U.S. Supreme Court in Lewis v. United States, 385 U.S. 206 (1966). Hoffa v. United States, 385 U.S. 293 (1966) extended this principle, holding that when suspects “misplaced confidence” outside a custodial setting, no Fourth Amendment remedy is readily available. Of course, Massiah v. United States, 377 U.S. 201 (1964) and its progeny hold that once a suspect has been indicted and has counsel, the government may not use undercover agents to deliberately elicit information. While Lewis gave some comfort to law enforcement attorneys that their use or authorization of deception did not violate the Constitution, it did not, as we will see, necessarily mean that it did not violate the Rules of Professional Conduct for attorneys.
Rule 8.4(c), Gatti, Pautler, and their Impact on Law Enforcement Attorneys
Model Rule 8.4(c) of the Rules of Professional Conduct has been adopted by every state but California, and has been amended by three states. Rule 8.4(c) states:
It is professional misconduct for a lawyer to:…(c) engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.
Two competing interests come into play with Rule 8.4(c): lawyers should not be in the practice of deception, but covert operations – and more simply, deception – is often necessary to promote government objectives.
David B. Isbell and Lucantonio Salvi argue that Model Rule 8.4(c) “should apply only to grave misconduct that would not only be generally reproved if committed by anyone, whether lawyer or non-lawyer, but would be considered of such gravity as to raise questions as to a person’s fitness to be a lawyer.” (Emphasis added.)1
This general principle, particularly as it applied to government attorneys, was generally not questioned by the courts in any noted case for a number of years. However, in a 2000 case involving the use of deception by a private attorney, the Oregon Supreme Court in In re Gatti, 9 P.3d 966 (Or. 2000) held that Oregon’s rule – which was similar to 8.4 – prohibited all deception by lawyers: “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 re Gatti, 9 P.3d at 976. Both the U.S. Attorney for the District of Oregon and the Oregon Attorney General argued that the Court should craft an exception for law enforcement attorneys.2 The Court held, however, that the “disciplinary rules and the statute apply to all members of the Bar, without exception.” Id. The holding by the Oregon Supreme Court had a dramatic effect on Oregon law enforcement, leading to the shut down of all undercover operations. Additionally, other states began to evaluate whether the use of deception by their law enforcement attorneys could withstand ethical challenges under Rule 8.4(c).
Two years after Gatti, the Colorado Supreme Court directly addressed the issue of deception by law enforcement attorneys. In re the Matter of Pautler, Case No. 01SA129, (Colo. 2002), involved a chief deputy district attorney (Pautler) who was attempting to negotiate the surrender of an individual who was later convicted of the brutal murders of three victims and the rape of another victim over the course of several days. The suspect was engaged in a phone conversation with a police officer and stated that he would not surrender without legal representation. After a failed effort to locate the suspect’s previous attorney, Pautler posed over the phone as a public defender and in fact negotiated the surrender of the suspect.3 Pautler was subsequently cited with violating Rule 8.4(c) and Rule 4.3 which states, inter alia, “[w]hen the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer’s role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding.” Id. The Colorado Attorney General appeared as amicus curiae for Pautler.
The Court found that Pautler had violated both Rule 4.3 and 8.4(c), holding in reference to the latter that “[t]his 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.” Id.
The States Begin to Clarify Rule 8.4(c)
A number of states sought to address the repercussions of Gatti in one of two ways: either by rewriting Rule 8.4 or its equivalent to carve out exceptions for law enforcement attorneys, or by issuing ethics opinions clarifying the intent of Rule 8.4.
Changing Rule 8.4(c) to Cover Law Enforcement
Oregon, Florida and Virginia all took the course of amending the language of Rule 8.4(c) to allow for law enforcement exceptions.
In the wake of the Gatti decision, Oregon rewrote the applicable sections to its Rules of Professional Conduct in January 2002 to grant both private and public lawyers the ability to be engaged in covert activity. The new rule reads:
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 disciplinary rules. “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 future.
Or. Code of Prof’l Responsibility DR 1-102(d) (2002).
In the early part of this decade, Florida suspended undercover investigations because of the rulings in other jurisdictions regarding Rule 8.4(c). In 2004, the Bar Board of Governors drafted a new rule, which was then approved by the State Supreme Court. This new rule allows lawyers to supervise, but not directly participate in, deceptive activities. Gary Blankenship, Rule Would Allow Some Lawyers to Supervise Undercover Work, Florida Bar News, Jan. 15, 2004, at 6. Florida’s new rule states:
It is professional misconduct for a lawyer to: . . .(c) engage in conduct involving dishonesty, fraud, deceit, or misrepresentation, except that it shall not be professional misconduct for a lawyer for a criminal law enforcement agency or regulatory agency to advise others about or to supervise another in an undercover investigation, unless prohibited by law or rule, and it shall not be professional misconduct for a lawyer employed in a capacity other than as a lawyer by a criminal enforcement agency or regulatory agency to participate in an undercover investigation, unless prohibited by law or rule.(Emphasis added)
Fl. Rules of Professional Conduct, R.4-8.4(c).
In Florida, attorneys still are disallowed from directly engaging in deceptive activities while acting in their role as attorneys. Attorneys can advise others about undercover activities and supervise undercover investigations. They also can participate in undercover investigations, as long as they are employed in a non-lawyer capacity.
Likewise, Virginia took the course of changing the language of its Rule 8.4(c), but rather more slightly. In 2003, Virginia rewrote Rule 8.4(c) to read as follows:
It is professional misconduct for a lawyer to:
(c) engage in conduct involving dishonesty, fraud, deceit, or misrepresentation which reflects adversely on the lawyer’s fitness to practice law; (Emphasis added).
Va. Rules of Professional Conduct, R. 4-8.4(c).
After this revision, the Virginia Bar’s ethics committee was able to issue an advisory opinion that federal agencies could conduct undercover work within Virginia. See Va. State Bar Standing Comm. on Legal Ethics, Op. 1765 (2003)
Rule 8.4(c) Works the Way It Is: Utah and DC Weigh In
Rather than changing their rules, Utah and the District of Columbia both issued opinions affirming that Rule 8.4(c) could not be interpreted to prohibit the use of deception by law enforcement attorneys. In doing so, these jurisdictions affirmed the “intuitive” nature of the meaning of Rule 8.4(c).
In March 2002, the Utah Ethics Advisory Committee issued an opinion on Utah’s Rule 8.4 (identical to the Model Code) that stated:
The Rules of Professional Conduct are rules of reason . . . we do not believe that rule was intended to prohibit prosecutors or other governmental lawyers from participating in lawful undercover investigations. Nor do we think a distinction should be drawn between prosecutors or other governmental lawyers who supervise the investigative activities of others and those who take part directly in such activities. We hold that as long as a prosecutor’s or other governmental lawyer’s conduct employing dishonesty, fraud, deceit or misrepresentation is part of an otherwise lawful government operation, the prosecutor or other governmental lawyer does not violate Rule 8.4(c). Utah State Bar Ethics Advisory Op. Comm., Op. No. 02-05 (2002)
The District of Columbia reached an opinion similar to that of Utah: “We do not believe Rule 8.4(c) is intended to reach lawful, authorized official conduct, even if there is a deceitful component to that conduct.” DC Bar Legal Ethics Comm., Op. 323 (2004). The DC opinion clarifies that it only applies to misrepresentations made in the course of official conduct authorized by law. “It is not a blanket permission for attorneys employed by government agencies to misrepresent themselves. Nor does it authorize misrepresentation when a countervailing legal duty to give truthful answers applies.” Id.
The Present and Future of the Use of Deception
Despite the shockwaves sent through law enforcement by the Gatti and Pautler decisions, only a handful of jurisdictions have taken steps to ensure that law enforcement attorneys have the legal support to continue the use of deception in undercover and other operations involving deception. Three states (Oregon, Florida and Virginia) have amended their rules, and two (DC, Utah) have issued opinions affirming that Rule 8.4(c) is not to be interpreted as prohibiting the use of deception. This leaves the vast majority of law enforcement attorneys across the country uninformed as to whether their involvement in undercover operations, directly or indirectly, leaves them exposed to ethical complaints. Granted, the unique facts of Gatti (private attorney using deception to further a civil case) and Pautler (strong superseding Sixth Amendment considerations) are such that neither provides a full-frontal assault on the permissibility of government attorneys engaging in undercover and otherwise deceptive operations. While bad facts often do make bad law, they do make law nonetheless. And Gatti and Pautler are unequivocal in their holdings. It is possible, perhaps even likely, that many ethical complaints against law enforcement attorneys for using deception have and are dismissed out of hand at the initial disciplinary review level, and thus never end up providing the basis for published opinions. In essence, a certain unwritten tradition probably exists in most jurisdictions that affirms the permissibility of the use of deception. However, the unwillingness of the Gatti and Pautler courts to find any exception in Rule 8.4(c) for law enforcement attorneys provides a cautionary tale that, if in doubt, advisory opinions from the relevant ethics committee should be sought in regards to government attorneys engaging in deception during the course of law enforcement investigations.
1 David B. Isbell & Lucantonio N. Salvi, 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 GEO.J.LEGAL ETHICS 791 (1995)
2 Under the McDade Amendment, passed in 1999, federal attorneys are required to comply with the local ethics rules in the jurisdiction where they are conducting investigations. The Amendment had been vigorously opposed by the Justice Department out of concerns it would force federal attorneys to comply with more than 50 different sets of ethical rules.
3 If this situation sounds familiar, it’s probably because a fact pattern very similar to this one was used in an episode of Law and Order. Serena Southerland, the fictional assistant DA, fared a bit better than Chief Deputy District Attorney Pautler. She received a private reprimand; Pautler received a three-month bar suspension, which was stayed pending the successful completion of 12 months probation, which included retaking the MPRE.
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