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

by Law Week Contributor

By Charles Luce, Jr.

Revised Colorado Rule of Professional Conduct 8.4(c) turns 2 years old on Sept. 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, “Got to love this: the Colo supreme court has said that lawyers may now engage in conduct involving dishonesty, fraud, deceit, or misrepresentation when advising law enforcement officers, investigators, or clients during lawful investigative activities. Kind of makes me dizzy.”

Of course the court did no such thing. In re Mark 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 that 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, Speier bemoans “the rule’s blatant irreverence for ethical codes that licensed private investigators practicing in the State of Colorado . . . licenses depend on.” 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,” according to Lexico and the Oxford University Press respectively.

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 that 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 “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 that 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 XVIll, sections 14 and 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 opposed 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 that 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.

— Charles F. Luce, Jr. chaired the ethics committee subcommittee that authored Opinion 137, co-chairs Moye White’s law practice professionals group and blogs at coloradolegalethics.com