The state’s high court has agreed to consider a change to an attorney ethics rule which, in its current form, has sent shockwaves through the law enforcement community and also led the Colorado Attorney General’s Office to halt undercover probes by its in-house investigators.
The adjustment would explicitly say attorneys can engage in dishonest conduct, deceit or misrepresentation in situations where they are directing or supervising law enforcement officers who are conducting “lawful investigative activities.”
Questions over prosecutors’ and lawyers participation in undercover operations began in December 2016 after the Child Sex Offender Internet Investigations Unit — in the Jefferson County District Attorney’s Office and known as “CHEEZO” — was shut down following a grievance filed by the defense lawyer of a man convicted after a probe by the team.
The Colorado Attorney Regulation Council, which fielded the complaint, found there was sufficient evidence to explore whether attorneys, who are barred from dishonest conduct, are allowed to participate in or oversee probes by units like CHEEZO, which use subterfuge or officers taking on pretextual identities. That includes cases where investigators seeking out child sex predators pretend to be a teenage girl or officers purport to be searching for a new home in order to root out discrimination.
Under Colorado law, deputies and officers can lie during investigative work. Lawyers and their staff, however, cannot.
The Colorado Attorney General’s Office petitioned the Colorado Supreme Court last month to take up the issue after it and other top prosecutors in the state opted to halt any involvement in undercover probes out of fear of violating the ethics rules. CHEEZO, for instance, has been moved into the Jefferson County Sheriff’s Office.
District attorneys across the state have in-house investigators and they, along with many law enforcement agencies, have asked the Colorado Supreme Court for the ethics rule change. The court is taking comments until Sept. 8 and has scheduled a hearing on the proposed rule change for Sept. 21.
“Public law offices like mine need to provide advice to law enforcement to ensure that undercover investigations, which are a crucial law enforcement tool, are done effectively, comply with the letter and spirit of the law, and protect the rights of all citizens,” Attorney General Cynthia Coffman said in a written statement. “The Court’s announcement is a welcome step in the right direction and I look forward to participating in the Court’s rulemaking process.”
The Colorado Criminal Defense Bar has said it’s against “letting prosecutors lie,” with president Darren Cantor explaining “that really changes the law and not for the better.”
