In Re Pautler
2002 Colo. LEXIS 368, 47 P.3d 1175, 2002 WL 971777 (2002)
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Rule of Law:
A lawyer, particularly a prosecutor, may not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation, regardless of a laudable motive such as apprehending a dangerous criminal. The ethical rules prohibiting deceit are absolute and do not contain an exception for exigent circumstances or for a lawyer acting in a law enforcement capacity.
Facts:
- William Neal murdered three women with a wood splitting maul and, after murdering a fourth victim in front of an abducted woman, J.D.Y., held J.D.Y. and two friends hostage.
- Neal eventually released the hostages, leaving instructions for them to page him when police arrived.
- Deputy Sheriff Cheryl Moore engaged in a three-and-a-half-hour phone negotiation with Neal for his surrender.
- During the call, Neal demanded to speak with a lawyer, either his former attorney or a public defender, as a condition of his surrender.
- Chief Deputy District Attorney Mark Pautler, present at the scene, was unable to contact Neal's former attorney.
- Believing a real defense attorney would advise Neal to stop talking and wanting the negotiations to continue, Pautler decided to impersonate a public defender named 'Mark Palmer'.
- Posing as 'Palmer', Pautler spoke with Neal on the phone and assured Neal that 'his lawyer' would be present at the surrender.
- Relying on this deception, Neal surrendered peacefully. Pautler did not correct the misrepresentation immediately or in the days following the event.
Procedural Posture:
- The Attorney Regulation Counsel charged Pautler with violating Colo. RPC 8.4(c) (dishonesty) and 4.3 (dealing with an unrepresented person).
- A presiding disciplinary judge granted summary judgment against Pautler on the Rule 8.4(c) violation.
- Following a hearing on the remaining charge, a hearing board found Pautler also violated Rule 4.3.
- The hearing board imposed a sanction of a three-month suspension, stayed during a twelve-month period of probation with conditions.
- The case was then appealed to the Supreme Court of Colorado for review of the board's findings and sanction.
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Issue:
Does a prosecutor's intentional misrepresentation, by impersonating a public defender to an unrepresented murder suspect to secure his peaceful surrender, violate the Colorado Rules of Professional Conduct?
Opinions:
Majority - Justice Kourlis
Yes, a prosecutor's intentional misrepresentation violates the Colorado Rules of Professional Conduct. The rules against engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation (Colo. RPC 8.4(c)) and improperly dealing with an unrepresented person (Colo. RPC 4.3) are absolute and contain no exceptions for motive or circumstance. Citing People v. Reichman, the court affirmed that even a noble motive does not excuse a departure from the Rules, especially for prosecutors who are held to the highest ethical standards. The court rejected Pautler's arguments for an 'imminent public harm' exception, noting that unlike a true hostage situation with no alternatives, Pautler had other ethical options available, such as attempting to contact a real public defender. The court also held that a lawyer's ethical obligations under the Rules of Professional Conduct apply regardless of whether the lawyer is acting as an advocate or in an investigatory, peace-officer capacity.
Analysis:
This decision establishes a bright-line rule in Colorado that a lawyer's duty of honesty is paramount and cannot be compromised, even in high-stakes situations involving public safety. By rejecting an 'imminent public harm' or 'choice of evils' exception, the court signals that the integrity of the legal profession is not subject to a utilitarian balancing test. The ruling strongly reinforces that prosecutors' ethical duties as attorneys trump any perceived necessities arising from their concurrent roles as law enforcement officers. This precedent will guide attorney conduct in criminal investigations, deterring the use of deception and forcing prosecutors to adhere strictly to ethical rules even when faced with compelling reasons to bend them.
