Potential Rule Change

Rule change could authorize attorney supervision of covert investigations

By: Charles Luce
MOYE WHITE

On Sept. 14, the Colorado Supreme Court convened to hear testimony on a proposed amendment to Colorado Rule of Professional Conduct 8.4(c):

“It is professional misconduct for a lawyer to … 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.”

The impetus was a Petition for Original Writ filed 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.” The petition advised the court that, pending a ruling on the applicability of Rules 5.3 and 8.4(c), her office “was forced to abandon all of her pending undercover investigations.”

The petition was prompted by a complaint lodged with the Office of Attorney Regulation Counsel last year on behalf of a convicted sex offender who sought to undermine a conviction obtained in part through the work of CHEEZO, a highly successful undercover investigative unit targeting online child predators. The complaint asserted that, because CHEEZO was administratively headquartered in the Office of Jefferson County District Attorney Peter Weir, Weir and other attorneys in his office were subject to professional discipline under Colo. RPC 5.3 and 8.4(c).

To read this story and other complete articles featured in the September 25, 2017 print edition of Law Week Colorado, copies are available for purchase online.