Oregon Bar Ethics Brouhaha Continues: Feds Still Refusing to Authorize Undercover Operations, State Narcs Could Be Out There 8/17/01

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Two weeks ago, DRCNet reported on the bizarre case of the Oregon state bar ethics rule that had state and federal prosecutors in a well-publicized snit because it barred them from using undercover investigators (http://www.drcnet.org/wol/197.html#oregonethics). A state Supreme Court action a year ago today had found that any attorney who practiced deceit or misrepresentation or supervised such deceit or misrepresentation was in violation of the bar's ethics code and subject to disciplinary action including disbarment. The Supreme Court crafted no exemption for state or federal prosecutors attempting to deploy undercover officers or informants, a tactic that relies on deceit and misrepresentation.

Earlier this year, the Oregon legislature acted to address the situation, passing a law that explicitly allowed state and federal prosecutors to employ undercover informants in "covert activities by public bodies... or the federal government for the purpose of enforcing laws, even though the participation may require deceit or misrepresentation."

With the passage of that law, DRCNet announced the end of a narc-free Oregon, but we were only half right.

In fact, state and federal prosecutors in Oregon remain unwilling to supervise undercover informants because of fears they may still be subject to discipline under the state bar ethics code.

"Yes, undercover operations are halted," the Oregon Bar Association's Kateri Walsh told DRCNet. "There is a difference of opinion about whether they need to be or not, but the important thing is that prosecutors have interpreted the ethics ruling this way, and operations are halted at this point," she said.

US Attorney for Oregon Mike Mosman confirmed that his office is not using undercover agents because of the ethics rule. "The US Attorney's office is not approving any kind of undercover work that requires any kind of deception or trickery, which is nearly everything," he told DRCNet. "We believe firmly that as currently interpreted by the Oregon Supreme Court it is unethical for us to supervise undercover work. Whether any federal agency has decided they can go ahead, I wouldn't know, but I strongly doubt it. I believe from what I know that it is effectively shut down," Mosman added. "This is a terrible problem for us, it really puts us out of the business of doing what we are sworn to do."

But if federal undercover operations have come to a screeching halt in Oregon, the situation is a bit more complicated for state and local officials. "The ethics code doesn't say that investigators cannot work undercover," said Oregon Attorney General Hardy Meyers' spokesman Kevin Neely. "What it says is that attorneys cannot work with investigators in situations where investigators are misrepresenting themselves. Police departments may have separate investigations without oversight from attorneys, but prosecutors work with investigators to determine what is needed to prosecute," he told DRCNet. "Every single police officer and law enforcement agency in the state agrees that they perform best when assisted by a prosecutor. But what is going on now is that investigators are working independently of prosecutors; once they closed the investigation, they can meet with the district attorneys," Neely added.

"If undercover work is required, what used to be a team sport is now a singular pursuit," he concluded.

The rules governing US Attorneys and undercover informants bind US Attorneys more closely to their informants than do state rules, and therein lies the problem for the feds, said Mosman. "State law enforcement has a greater ability to move forward with undercover investigations than federal law enforcement has," he told DRCNet. "State prosecutors can sit in their offices and wait for the end product of an investigation, while federal prosecutors, by law, regulation, policy, and wisdom, have to approve investigative steps. We can't do that now with this rule hanging over us."

That may be the case for the feds, but according to Oregon Chief Deputy Public Defender Jesse Barton, the ethics rule has not eliminated undercover operatives. "There are still narcs running around here," he told DRCNet. "They're just not being supervised by district attorneys. If a cop is unclear about what he is doing, he just has to talk about hypotheticals, and if it is after the fact, district attorneys should have no ethics problem."

While prosecutors and law enforcement have been yelling loud and long about the disastrous impact of the ethics rule on law enforcement, "I haven't noticed any big increase in crime," said Barton.

Even US Attorney Mosman was unable or unwilling to point to any specific examples of how the moratorium on federal undercover operations had led to increased lawlessness. "What I can say," Mosman told DRCNet, "is that anytime we discuss this, there is a tension between trying to explain to the public the disastrous situation we're in and trying not to advertise that it is open season in Oregon. There is still work for us in Oregon, we can still pursue non-undercover work, but those people the public looks to us to pursue, the craftiest organizations, the interstate and international organizations, cannot be effectively pursued without the undercover element," he continued. "I would not be surprised if some of these organizations are well aware that our hands are tied."

If civil libertarians, defense attorneys, and drug reform activists are pleased with the current situation in Oregon, the law enforcement establishment is not, and it is moving on two fronts to get matters back to normal. The Oregon State Bar's Walsh told DRCNet that the bar had already attempted one ethics rule fix, but that was rejected by the Supreme Court as going too far. "It would have carved out an exception for undercover operations, but the court thought it was too broad and gutted that provision," she said.

"The bar's board of governors has approved another amendment to the rules," Walsh continued, "which will go to the bar's house of delegates for approval, and then on the Supreme Court. The first effort was too broad, so this time we tried to maintain the integrity and purpose of the rule. I'm optimistic that the bar will find a solution," she added.

US Attorney Mosman is also watching the ethics rule revision process. "This week, the state bar forwarded a new rule to the house of delegates with amendments to the disciplinary rules that could be helpful. We are waiting with guarded optimism."

But according to public defender Barton, that is not a done deal. "The house of delegates is a political body," he told DRCNet, "and can be lobbied. The press will be there, folks will be speaking for and against, and the delegates can just say no to the new amendment. If the arguments are persuasive and the delegates decide we're fine without narcs, then the state's ability to have its employees go out and be involved in crime for the purpose of eliminating crime will itself be eliminated."

That is why US Attorney Mosman and the Department of Justice have opened a second front. Mosman told DRCNet that DOJ has sued the Oregon bar in federal court seeking declaratory relief from the ethics rule burden. "We are seeking a federal court ruling that the ethics rule is trumped by the federal supremacy clause in this case," he said. "Our position is that the ethics rule is really an attempt by the state bar to govern the conduct of undercover work, and that's not an ethics question, it's more a question of substantive federal law enforcement procedure. Oregon disciplinary rules cannot govern how federal law enforcement is carried out," said Mosman.

Action on both tracks is expected by mid-September. The Oregon Bar Association house of delegates vote will come then, and the initial hearing in federal court is expected then, Mosman said. Oregon's unique experiment in narc-less democracy is thus probably weeks or perhaps months away from its demise. But while the federal court is probably impervious to public opinion, the bar's house of delegates is not. Oregonians who would like to preserve the current state of affairs have that window of time in which to act.

-- END --
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Issue #199, 8/17/01 Editorial: Let Justice Be Done | US Global Lead in Imprisonment Still Safe: State Prison Populations Begin to Decline but Feds Make Up Difference | Prison Industry Confab Gets Heated Reception in Philadelphia | Mandatory Minimums Under Threat, Supreme Court Showdown Looming After 9th Circuit Rules Against Certain Drug Sentencing Laws | Oregon Bar Ethics Brouhaha Continues: Feds Still Refusing to Authorize Undercover Operations, State Narcs Could Be Out There | Department of Education Cites Pressure to Modify Restrictions on Financial Aid | Australia: Top Cops Propose "Heroin Bank," Political Firestorm Ensues as Prime Minister Nixes Idea | Chess Players Become Drug Tested Pawns in Game's Bid for Olympic Status, Players Not Amused | Vermont Governor Leads Way in Restricting Oxycontin for the Poor | Weitzel Prosecution Condemned by Leading Pain Specialist | Marijuana Extracts for Pain Study to Begin in Canada | DRCNet Book Review: Hooked: Five Addicts Challenge Our Misguided Drug Rehab System | T-shirts for Victory! Special Offer and Appeal from DRCNet This Month | Action Alerts: Ecstasy Bill, HEA, Mandatory Minimums, Medical Marijuana, John Walters | HEA Campaign Still Seeking Student Victim Cases -- New York Metropolitan Area Especially Urgent | The Reformer's Calendar
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