If you're a federal agent in Oregon these days, the law requires you to tell the truth, the whole truth and nothing but the truth--even when you're working undercover. And that has brought major law enforcement operations all over the state to a virtual standstill.
"I am a drug cop, please sell me some heroin. That's literally what's required," explains Joshua Marquis, the Clatsop County district attorney.
A sweeping ruling last year by the state Supreme Court mandated that all lawyers--even government prosecutors overseeing organized crime and narcotics cases and state investigators conducting consumer fraud and housing discrimination probes--must abide by the Oregon state bar's strictures against dishonesty, fraud, deceit and misrepresentation.
Under the court's interpretation, a prosecutor who encourages an undercover officer or an informant to lie or misrepresent himself could lose his license to practice law.
Federal Prosecutors Hit Hardest
The provision has been most problematic for federal prosecutors, who typically have a much more intense day-to-day role in overseeing major investigations conducted by the FBI and the Drug Enforcement Administration to be sure that they comply with complex provisions of federal law.
As a result, the state attorney general's office, the FBI and the DEA have halted virtually all big undercover operations, and local police agencies have canceled most covert operations in drug cases that could end up in federal court.
"People in this state are not receiving the protection they're entitled to," said Philip Donohue, acting special agent in charge of the FBI office in Portland. "This has impacted a substantial amount of the criminal work that would ordinarily be done within the state of Oregon."
Lawyers for the state bar have met repeatedly in recent months in an attempt to craft a way around the restriction, perhaps by exempting government prosecutors. But they have run into deep philosophical divisions over the role of lawyers in overseeing covert probes--and whether modern law enforcement is simply relying too heavily on trickery and misrepresentation.
Since no one really wants to halt police undercover work, "it sounds like there should be a very simple solution," said Ed Herden, president of the state bar and a Portland lawyer. "Everyone agrees that lawyers should not misrepresent themselves as something other than what they are. But [with the restrictions in place] . . . how do we provide the police with meaningful advice as to how to act in a legal manner?"
The dilemma began with a private attorney who, seeking to gain information for a civil lawsuit in an insurance case, conducted his own sting operation and made phone calls in which he represented himself as a doctor.
The Oregon Supreme Court last August found that the lawyer had engaged in dishonest conduct in violation of state bar rules. The court also ruled that the ethics code does not contain exceptions for government lawyers overseeing legal law enforcement operations.
Although the Justice Department always has required its lawyers to abide by individual states' legal ethics rules, a controversial federal law passed in 1999 known as the McDade law makes it explicit, legally requiring federal prosecutors to abide by all state bar ethics rules.
Investigations Put on Ice
As a result, the U.S. attorney in Oregon, Mike Mosman, has pulled his lawyers out of undercover operations. And the FBI has suspended a child pornography investigation developed by undercover agents and halted the use of cooperating witnesses in at least two major drug cases, three extortion cases and a major white-collar crime investigation.
"When we try to go after sexual abusers who lure young children in Internet chat rooms, a very traditional tactic is to pose as a 12-year-old girl," Mosman explains. "In extortion cases, rather than wait for the next raid, you have the victim phone up the extortionists in a monitored call."
In each case, the lawyer overseeing the investigation is not actually lying. But the Supreme Court ruling seemed to say that "material omissions" were as bad as lying when it came to violating ethics rules, Mosman said.
A Roadblock for Major Drug Cases
Local district attorneys do not have the McDade law holding their feet to the fire. But most police agencies prefer to have a prosecutor overseeing complex investigations, and that oversight is mandatory if the case is going to be tried in federal court.
"The federal agencies are now not willing to look at our cases if they involve any kind of undercover activity," said Lt. Gary Stafford of the Portland Police Bureau's drug and vice division. "That kind of puts a big roadblock in our way as far as taking down any of the substantial quantity dealers that should be prosecuted federally."
Earlier this month, according to Stafford, federal prosecutors rejected a major case involving "club" drugs, such as Ecstasy, because it involved undercover operations and confidential informants.
The state bar attempted one fix, an amendment to the ethics rules that exempted lawyers who are conducting or supervising operations involving "legal covert activity"--as long as they didn't participate in the operations. The Supreme Court in April rejected that policy as too broad, so the state bar's board of governors now is trying to draft another amendment.
The problem is, many lawyers, especially defense lawyers, think undercover operations have gone too far and government prosecutors are taking too big a role in conducting them. If prosecutors can engage in misrepresentations, why can't defense lawyers use similar tactics in, say, attempting to impeach government witnesses, many wonder.
"Is it consistent with our democratic system to allow the government to engage in deceit but preclude others from doing so?" asked federal public defender Stephen Wax in a recent Federal Bar Assn. newsletter.
"One of the questions raised is whether we, as a society, should be relying on undercover operations to the extent that we do," Wax said. "Undercover operations are a corrupting influence on law enforcement. It is not only cooperating witnesses who lie out on the street but also the police themselves who go undercover. When people get in the habit of lying, the distinction between truth and fiction can blur. . . . When one value--fighting the war on drugs--is seen as higher than another--honesty or ethical norms--behavior has a tendency to be pushed to extremes."
McDade Law Called 'Counterintuitive'
All the more reason, prosecutors argue, to have a lawyer overseeing the police, making sure they adhere to the law.
"The right kind of system to have is for the agents on the street to run questions that go to serious privacy issues by a federal prosecutor, to ensure the propriety and legality before it goes forward," Mosman said.
"It's completely counterintuitive," Marquis added. "If anything, you would want lawyers, who have all kinds of ethical obligations on them, to be having as much influence on law enforcement as possible."
The Justice Department has filed a lawsuit seeking to exempt federal prosecutors from the bar's code of conduct. The board of governors could have a draft rule for the Supreme Court's review by September.
But, Marquis said, the effect of the rules as they stand will become more apparent in the coming months.
"We have not seen prisons emptying out. The impact is much more subtle," Marquis said.
"The cops are perfectly capable of conducting investigations without the D.A. looking over their shoulders. They'll go ahead and do it anyway, they'll do it wrong and, when we get a motion to suppress the evidence they collect a couple months later, we'll lose."