A Colorado district attorney used deception to get a man who had murdered three people and was threatening to kill again to surrender himself to the police. Following this, the Colorado Attorney Regulation Counsel charged the attorney with violating Rules 8.4(c) and 4.3 of the Colorado Rules of Professional Conduct. This article discusses the Rule 8.4(c) charge. Colorado and Ohio have identical provisions in their Codes of Professional Conduct on dishonesty and violations of professional conduct rules

Snyder, Lloyd B.

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10-1-2007
Lawyer Deception to Uncover Wrongdoing
Lloyd B. Snyder
Cleveland State University, l.snyder@csuohio.ed
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Lloyd B. Snyder, Lawyer Deception to Uncover Wrongdoing, 78 Cleveland Bar Journal 10 (October 2007)
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Citation: 78 Clev. B.J. 10 2006-2007 
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Lloyd Snyder
Vice Chair I CBA Ethics and
Professionalism Committee
Lloyd is a professor at Cleveland-
Marshall College ofLaw
Lawyer Deception to
Uncover Wrongdoing
olorado Chief Deputy District Attorney Mark Pautler had a dilemma. William Neal
had brutally murdered three victims. He had left three witnesses, given them his
pager number, and told them to give it to the police. He then fled. The police were
able to contact Neal, but they could not get a fix on his location. After much discus-
sion, during which Neal made references to his continued ability to kill, he offered to surrender if he
could first speak to his former lawyer or a lawyer at the public defender office. Pautler tried, but was
unable to reach Neal's former lawyer.
Pautler did not contact the Public Defender office. He later explained that he feared they would
advise Neal to stop talking to law enforcement and further that he did not trust anyone at the PD office.
Instead, he impersonated a public defender using the name Mark Palmer. Pautler spoke to Neal but did
not respond to Neal's request for information about his rights. Pautler did assure him the police would
honor their promise to give him a separate cell and cigarettes upon arrest, and also assured him his
lawyer would be present. To the last request Pautler replied, "Right, I'll be present." Neal then surren-
dered without incident.
Pautler never informed Neal or the public defender who subsequently represented him about the
deception. When Neal asked his assigned attorney about Mr. Palmer, the lawyer informed him the
office had no person by that name. Relations between Neal and the lawyer were strained after that, and
the defendant subsequently fired his lawyer and represented himself. He was convicted and sentenced
to death. Pautler and the lawyer in the PD office disputed whether Neal's mistrust and subsequent dis-
charge of his lawyer were precipitated by Pautler's deception. The lawyer assigned to Neal did not learn
about Pautler's actions until two weeks after he began representing Neal when he listened to the tapes of
the surrender negotiations and recognized Pautler's voice.
Following these events the Colorado Attorney Regulation Counsel charged Pautler with violating
Rules 8.4(c) and 4.3 of the Colorado Rules of Professional Conduct. This article discusses the Rule
8.4(c) charge. Colorado and Ohio have identical provisions in their Codes of Professional Conduct both
reading as follows:
It is professional misconduct for a lawyer to:
(a) violate or attempt to violate the rules ofprofessional conduct, knowingly assist or induce another to
do so, or do so through the act of another;
(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation....
The Colorado Supreme Court affirmed a hearing board decision that Pautler had violated the state's
Rules of Professional Conduct by engaging in conduct involving deceit prohibited by Rule 8.4.1
During the course of its decision the Court stated:
In this proceeding we reaffirm that members of our profession must adhere to the highest moral and
ethical standards. Those standards apply regardless of motive. Purposeful deception by an attorney
licensed in our state is intolerable, even when it is undertaken as a part of attempting to secure the sur-
render of a murder suspect. A prosecutor may not deceive an unrepresented person by impersonating a
public defender.2
The Pautler decision sent shockwaves through the legal community in Colorado and across the
nation. The prohibition on lawyers engaging in conduct involving dishonesty, fraud, deceit or misrep-
1 Matter of Pauter, 47 P.3d 1175 (Colo. 2002). 3 Ohio Rules of Professional Conduct R. 8.4, Comment [2A].
2 Pautlerat 1176.
CLEVELAND BAR JOURNAL
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OCTOBER 2007 VVWW.CLEVELANDBAR.ORG
HeinOnline  -- 78 Clev. B.J. 10 2006-2007
resentation had been part of the legal ethics rules
since 1969, but had never been held to cover
activity designed to capture persons engaged in
criminal activity. The wording of the rule is quite
broad and absolute. It does not include any lan-
guage that would admit of exceptions. Looking at
the rule and the facts of the Pautler case, the result
is perfectly reasonable.
The potentially broad application of the deci-
sion made lawyers nervous. It could be read to bar
lawyers from supervising undercover law enforce-
ment officers in sting operations and other investi-
gations of illegal activity. It could be read to pro-
hibit lawyers from sending testers purporting to
seek employment, housing or public accommoda-
tions to obtain evidence of civil rights violations.
One could distinguish the Pautler case on the
grounds that the lawyer personally deceived Neal.
In most cases lawyers supervise investigators and
other non-lawyers in conducting investigations that
include deception. The rule does not provide much
comfort for lawyers making this argument. By its
terms, the rule bars lawyers from engaging in con-
duct involving deception; it is not limited to barring
personal deception by the lawyer. Moreover, sec-
tion (a) of the same rule bars a lawyer from violat-
ing the rules "through the acts of others."
There are a number of other ways to distinguish
Pautler's conduct from other cases of deception to
investigate criminal activity or civil rights violations.
Besides engaging in the deception personally, he
purported to be representing the interests of the
defendant while acting in a law enforcement capaci-
ty, he did not disclose his conduct following the
arrest, and his motives were suspect based on his
intent to prevent defense counsel from advising Neal
not to talk to the police. The breadth of the lan-
guage used by the Colorado Supreme Court and its
failure to rely on the particular facts in the Pauder
case may account for the decisions' notoriety.
The Ohio Rules of Professional Conduct
include language identical to the Colorado rule.
But the drafters also included language that
should give comfort to prosecutors and civil
rights lawyers using deception to uncover wrong-
doing. They added a comment that is not found
in Colorado or in the Model Rules. The Ohio
comment notes that "[d]ivision (c) does not pro-
hibit a lawyer from supervising or advising about
lawful activity in the investigation of criminal
activity or violations of constitutional or civil
rights when authorized by law." 3
Three points are noteworthy about this com-
ment. First, the rule directly applies to civil rights
lawyers who use testers to obtain evidence of dis-
criminatory conduct and to prosecutors oversee-
ing undercover agents. Second, the rule permits
lawyers to oversee this conduct, but does not per-
mit them to engage in the conduct personally.
Pautler would not have been aided by the Ohio
comment. Third, the rule does not permit a free
for all in the name of investigating criminal or
unconstitutional conduct. A lawyer may oversee
the activity only when the covert activity is lawful
or the investigation is authorized by law. But that
should be the purpose of lawyer oversight of this
kind of conduct in any event. The reason for hav-
ing a lawyer give advice to undercover agents and
testers is to make certain they do it correctly and
lawfully. Otherwise, the information obtained
may not be admissible. If lawyers overseeing sting
and undercover operations and tester activity act
in accordance with law to assure that the agents
they advise do not behave improperly, they will be
able to rely on the Ohio Rule comment to support
their conduct. Z
Thanks to attorney Diane Citrino for bringing
this comment to my attention.
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