Lawyers cleared to assist in sting activity
A change to Colorado’s attorney-conduct rules clears up questions that sent shock waves through the law-enforcement community, prompted the attorney general to halt probes by her inhouse investigators and briefly shuttered a Jefferson County child sex-crimes unit.
Under the modification released Thursday by the Colorado Supreme Court, lawyers can now engage in conduct involving dishonesty, fraud, deceit or misrepresentation when advising law enforcement officers, investigators or clients during lawful investigative activities. The Colorado Attorney General’s Office says they can’t personally conduct such subterfuge but can supervise those actions.
The debate dates to December , when the Child Sex Offender Internet Investigations Unit in Jefferson County — known as CHEEZO — was disbanded following a grievance filed by the defense lawyer for a man convicted after a probe by the team.
The grievance questioned whether the unit, housed in the Jefferson County District Attorney’s Office, broke Colorado attorneys’ ethics rules since its investigators, under the supervision of prosecutors, were using subterfuge and pretextual identities to lure suspected child predators.
The questions stemmed from a mandate that the state’s lawyers can’t engage in dishonest conduct, but which was being interpreted to mean neither they nor their staffs can participate in investigations where there is subterfuge or officers taking on pretextual identities.
The Colorado Attorney Regulation Council, which fielded the complaint, found there was sufficient evidence to explore whether attorneys are allowed to participate in or oversee probes by units like CHEEZO, prompting questions — from the U.S. Attorney’s Office to police departments — about such units and undercover operations across the state.
“It is tremendously important for my office, and for prosecutors across Colorado, to be able to provide ad-
vice and supervision to undercover investigators,” Colorado Attorney General Cynthia Coffman said in a written statement to The Denver Post. “This access to legal advice helps ensure that undercover investigations are effective and that the rights of all citizens are protected. I am grateful that the Colorado Supreme Court agreed and has adopted this new rule change.”
She added: “Now my office can get back to protecting the public, using law enforcement techniques that are critical to investigating some of the most serious crimes and legal violations.”
But Phil Cherner, the defense attorney whose client’s case sparked the initial uncertainty, called the change “a real tragedy for justice.”
“The notion that we can lie in any situation is abhorrent to everything we stand for as lawyers,” he said Friday morning. “Prosecutors can now get more deeply involved in undercover work unnecessarily because the undercover work is almost always done by police agencies who are not bound by lawyers rules of conduct.”
“There are enough lawyer jokes out there already, don’t you think?” he added.
The Colorado Criminal Defense Bar has called any changes to the rules “unnecessary” and said alterations would “unleash unpredictable results.”
“I grew up believing being an attorney was an honorable and honest profession,” said Darren Cantor, a criminal defense attorney who urged the state’s high court against making the change. “The Colorado Supreme Court today took away that dream, and said attorneys are no better than used car salesmen. The Colorado Supreme Court just lowered the bar on honesty in our profession.”
The CHEEZO unit has since been moved to the Jefferson County Sheriff’s Office where it is back under operation.