Vol. 31, No. 8
CBA President's Message to Members
To Tell the Truth?
by John E. Moye
When I said I planned to write a President’s Message now and again, one of the CBA staff members asked me to promise not to write about the image of lawyers. It seems that every bar president does, because, after all, it is one of the things that concerns all of us in the profession. But, from time to time, there are events that make us particularly proud to be members of the legal profession—and they deserve to be celebrated. Interestingly enough, the event I want to highlight this month caused a mixed-to-negative reaction in the press—the messenger that forms public opinion of lawyers and judges. The situation highlights the disconnection between our Rules of Professional Conduct and the media’s opinion of our actions.
The Pautler Case
In May 2002, Justice Kourlis of the Colorado Supreme Court wrote the opinion in the Pautler case.1 Deputy District Attorney Mark Pautler attended the scene of a gruesome crime where three women had been murdered. He learned that a witness to the crime had contacted law enforcement, and he drove to the witness’s apartment. When he arrived, Pautler found that an officer from the sheriff’s department was in contact by phone with the suspect, William Neal. One condition Neal demanded was that he speak to an attorney before surrendering. After a brief and unsuccessful attempt to reach Neal’s former attorney by separate phone line, Pautler offered to impersonate a public defender.
The officer on the phone with Neal introduced Pautler to Neal as a public defender. Pautler took the phone, engaged Neal in conversation, and represented himself to Neal as a public defender. Neal came to believe that Pautler was his attorney. Neal later surrendered to law enforcement without incident. Pautler never voluntarily revealed the ruse to Neal nor to his later-appointed defense counsel. The Colorado Supreme Court affirmed the findings of the disciplinary panel that found Pautler guilty and sanctioned him to a three-month suspension, the penalty to be stayed during twelve months of probation.
The Denver Post wrote an editorial the next morning that criticized the opinion of the Supreme Court. The editorial read, in part:
Breathes there the man with soul so dead, that never to himself hath said: "If the law supposes that, the law is an ass, an idiot." . . . Actually, there are seven such souls, all of whom serve on the Colorado Supreme Court. Monday, the denizens of that ivory tower scolded Jefferson County prosecutor Mark Pautler for telling a white lie that helped bring a triple ax murderer into police custody before he could kill again. . . . In her opinion Monday, Kourlis acknowledged Pautler’s reputation for high ethical standards and that Pautler believed Neal might kill again unless he posed as a defense attorney. But she still concluded: "Purposeful deception by an attorney licensed in our state is intolerable, even when it is undertaken as a part of attempting to secure the surrender of a murder suspect." It is our devout hope that Justice Kourlis, a generally moderate and sensible jurist, never finds herself in the role of the victims of Neal’s rampage. To them or other potential victims, the issue of Neal’s continued freedom would have seemed substantially less abstract. . . . So here are the rules: Don’t save any more lives for the balance of this year, Mr. Pautler, and you will be restored to the ranks of brain-dead pettifoggers for whom the letter of the law is all and the spirit is nothing. Until then, you are sentenced to receive the respect and gratitude of the citizens of Colorado whom you have served so well.2
I suspect that if the Editor of The Denver Post were accused of a horrible crime and were misled by a prosecutor posing as his lawyer, the editorial would have excoriated the legal profession for permitting such a scoundrel to practice law.
The system in which we work depends on the trust and confidence of the public in our words and our deeds. Any deviation from the standards of truth and honesty and any deception in which we engage, however slight, erode the public trust and threaten the very underpinnings of our profession.
Justice Kourlis began her opinion by reminding us of the oath of new lawyers (a version of which we all recited at our admission ceremony):
I will employ such means as are consistent with Truth and Honor; I will treat all persons whom I encounter through my practice of law with fairness, courtesy, respect, and honesty.
Then she quoted from the preamble of the Colorado Rules of Professional Conduct:
Lawyers, as guardians of the law, play a vital role in the preservation of society. The fulfillment of this role requires an understanding by lawyers of their relationship with and function in our legal system. A consequent obligation of lawyers is to maintain the highest standards of ethical conduct.
She acknowledged that, despite negative public opinion about lawyers, the profession has an obligation to establish confidence in the system. Justice Kourlis wrote: "The jokes, cynicism, and falling public confidence related to lawyers and the legal system may signal that we are not living up to our obligation; but, they certainly do not signal that the obligation itself has eroded." She also acknowledged the work of the Professional Reform Initiative ("PRI") of the Colorado Bar Association, ably chaired by past-CBA-President Dale Harris. The PRI’s objective is to emphasize truthfulness, honesty, and candor as the core values of the legal profession.3
Although she left open the question of whether the deceptive conduct of a lawyer could be justified by threatened imminent danger (a situation she was not willing to find in the Pautler circumstances), Kourlis concluded that the Court’s affirmation of Pautler’s punishment "reaffirms for all attorneys, as well as the public, that purposeful deception by lawyers is unethical and will not go unpunished."
I would have thought that not many people could disagree with those standards. Yet, we already know that The Denver Post did (at least under the circumstances as it perceived them). And, much to my surprise, there are also debates and court actions within our profession about the issue of using deceptive conduct in criminal and other significant situations.
The Oregon Experience
The Supreme Court of Oregon was asked by an attorney being disciplined to adopt an investigatory exception to the disciplinary rules and the corresponding statute. The exception states: "[A]s long as misrepresentations are limited only to identity or purpose and [are] made solely for purposes of discovering information, there is no violation of the Code of Professional Responsibility."4 The Court received amicus curiae briefs on the subject from the U.S. Attorney for the District of Oregon, who argued that government attorneys involved in law enforcement activities may use a form of deception or covert operations without violating the disciplinary rules. The Attorney General for the State of Oregon agreed. The Oregon Consumer League and several other lawyers argued that such an exception should apply not only to government lawyers. They argued that to gather facts before litigation, even private lawyers should be permitted to misstate their purpose and identity.
The Oregon Supreme Court (like Colorado’s Justice Kourlis) held that it would not permit recognition of an exception for any lawyer to engage in dishonesty, fraud, deceit, misrepresentation, or false statements. The U.S. Attorney then filed suit against the Oregon State Bar, arguing that the Supremacy Clause barred the application of disciplinary rules to federal government lawyers for otherwise lawful activities of their official duties. This case was dismissed when the Oregon Supreme Court and the Oregon legislature relented. Today, prosecutors and government lawyers in Oregon are permitted to participate in covert activities that are conducted by the government for the purpose of enforcing laws, even though this participation may require the use of deceit or misrepresentation.5
The Oregon Code of Professional Responsibility now provides that it shall not be professional misconduct for a lawyer to supervise lawful covert activity in the investigation of violations of civil or criminal law or constitutional rights. "Covert activity" means an effort to obtain information on unlawful activity through the use of misrepresentation or other subterfuge.6 Such a rule, had it been in effect in Colorado, would have exonerated Mark Pautler. Whether such a rule is workable is ultimately to be decided by the Oregon Supreme Court.7 The theories advanced to support this type of rule are that (1) lawyers, who are also peace officers, should not have to distinguish their respective responsibilities in their duties in pursuing criminals and frauds, and (2) deception is a useful technique of investigation, which should be available to anyone engaged in it, no matter that they are admitted to the bar.
Lessons to be Learned
The lessons we can learn from all of this are:
1. The lawyers who perform services as prosecutors and peace officers are under pressure to accomplish objectives of both roles, but it is not clear that such pressures should justify a departure from the core values of the legal profession.
2. If exceptions are made to our code of honesty for some lawyers, it is very easy to extend the exception to all lawyers.
3. The image of the legal profession can only be harmed by ethical rules that permit deception in any context of our work.
We also should learn that the media is not always going to support lawyers and judges—even when they uphold the highest principles of our profession—if the media’s perception of the public interest is not consistent with those principles. Our clients and the public can only benefit from lawyers who set and observe their own moral compass and who know, at the end of the day, they were truthful and honest in everything they did that day. Even if the media’s perceptions of what we do are critical, we can always know that we have done the right thing. Our Supreme Court requires reciprocal conduct from our colleagues.
1. In the Matter of Pautler, 31 Colo.Law. 249 (July 2002) (S.Ct. 01SA129, annc’d 5/13/02).
2. Editorial, "Don’t Save Any More Lives!" The Denver Post (May 14, 2002) at B-06.
3. See "CBA PRI Task Force Interim Report to the Board of Governors, May 2002," 31 The Colorado Lawyer 53 (July 2002).
4. In re Gatti, 8 P.3d 966 (Colo. 2000).
5. Oregon Rev. Statutes § 9.528 (effective June 28, 2001).
6. DR 1-102(D), Oregon Code of Prof. Resp. (effective Jan. 31, 2002).
7. In a case arising before the effective date of the new statute and DR-1-102(D) of the Oregon Code of Prof. Resp., the Oregon Supreme Court disciplined a lawyer who advised a private investigator to pose as a reporter in interviewing a witness. The Court noted that it had recently approved the amendment to DR 1-102, but would not express any opinion on whether the accused’s conduct still would violate the rule prohibiting a lawyer to engage in conduct involving dishonesty, fraud, deceit, or misrepresentation. See In re Ositis, 333 Or. 366 (2002).
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