Pubdate: Mon, 30 Jul 2001 Source: Seattle Times (WA) Copyright: 2001 The Seattle Times Company Contact: http://www.seattletimes.com/ Details: http://www.mapinc.org/media/409 Author: Kim Murphy, Los Angeles Times NO LIE: OREGON LAW HALTS UNDERCOVER OPERATIONS PORTLAND - 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. 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 (DEA) to ensure 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. Because 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. 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. 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. "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 is trying to draft another amendment. The problem is, many lawyers, especially defense lawyers, think that undercover operations have gone too far and that government prosecutors are taking too big a role in conducting them. - --- MAP posted-by: Kirk