February 2008
Featured Disciplinary Case
Topic
The Sixth Amendment May Require Criminal Defense Counsel to do All that is Necessary to Defend a Client Including Engaging in Conduct Involving Pretexting or Deception.
Summary
Stephen P. Hurley is a talented and well-respected criminal defense practitioner and a partner in the Madison, Wisconsin firm of Hurley, Burish & Stanton, S.C. A graduate of the University of Illinois Law School, Hurley was licensed in Illinois in 1972 and in Wisconsin in 1976. Since 1989, he has been an adjunct professor at the University of Wisconsin Law School and is a popular teacher of evidence and trial advocacy.
In 2003, Madison businessman Gordon E. Sussman was charged in Dane County with two counts of repeated sexual assault of a child, two counts of exhibiting harmful material to that child, and sixteen counts of possession of child pornography. The sexual assault charges were based on the statements of a boy named Scott, who was 9 years old at the time of the earliest charged offenses, 12 years old at the time of the latest charged offenses, and 13 years old when he reported the allegations. Sussman initially met the boy while serving as a volunteer mentor at West Middleton Elementary School, where Sussman's two children also attended. The charges of possessing child pornography were based on images found on a computer used by Sussman at his place of business, Rutabaga Sports, a canoe and kayak venture that employed sixty people.
Detective Bruce Frey of the Madison Police Department had initially investigated the case. In 2002, Frey was present when a social worker interviewed Scott. At one point during the interview, the boy offered to show the interviewer and investigators pornography on Sussman’s office computer. Scott said that he knew Sussman’s computer password and the fact that Sussman left the office by 3:30 p.m. each afternoon. Based upon the interview, a search warrant was obtained and computers from Sussman’s home and office were seized. Sussman then hired Hurley.
After researching the case, Hurley began to doubt Scott’s credibility and believed the boy was lying. The bases for his belief included:
- Evidence he uncovered that Scott had previously made and threatened to make false accusations of sexual abuse against two male relatives, including his father. (Scott had admitted that the accusations against his father were untrue.)
- Evidence he uncovered that Scott had a history of accessing pornography on the Internet on his home computer and at school.
- Evidence he uncovered that Scott’s family members and teachers considered Scott an untruthful person.
Hurley believed that Scott’s computer could contain potentially exculpatory evidence. Scott had accused Sussman of forcing him to view child pornography and other harmful materials. Hurley was convinced that Scott had an independent interest in, and the ability to access, the type of pornography that he had accused Sussman of showing him. Because Scott had had access to Sussman’s work computer, Hurley considered Scott’s independent proclivity to view child pornography a key question in the case. The lawyer believed that, if given advance notice of Hurley’s desire to examine his computer, Scott would destroy any evidence of wrongdoing. Hurley knew through investigation that Scott sought and received advice from Rutabaga Sports’ IT department about how to delete “cookies” and other types of computer code that store the images one views on the Internet. He also uncovered information that Scott’s mother’s former roommate had helped Scott improve the performance of Scott’s home computer by deleting a large amount of material, much of which the former roommate alleged was pornographic.
Hurley became suspicious of Detective Frey’s intentions, believing him to be heavily biased toward Scott. Hurley knew that, for the first two years of the police investigation, Frey had never seized or examined Scott’s computer. Further, he knew that Frey never interviewed the two male relatives that Scott had allegedly accused of molesting him. Hurley therefore did not trust Frey to investigate Scott’s home computer in a way that would prevent Scott from destroying evidence. As a result, Hurley retained a private investigator named Rikki Glen. Glen contacted Scott and his mother and attempted to interview them. Scott and his mother refused to speak with her at length. Thereafter, Hurley designed and supervised a covert operation intended to deceive Scott and his mother into giving up Scott’s computer to Hurley so that the computer could be examined.
Hurley claims to have researched the lawfulness of the plan, as well as its appropriateness under the Wisconsin Rules of Professional Conduct. He also surveyed lawyers inside and outside his firm and observed the conduct of certain public and private attorneys conducting similar investigations without sanction in Wisconsin. He did not, however, call the Wisconsin State Bar ethics hotline. He claims that his research took approximately two months and eventually led him to conclude that his private sting operation would be lawful and ethical. Many people in the lawyer regulation community would disagree with Hurley’s assessment, chiefly because most state ethics codes absolutely prohibit any conduct involving dishonesty, fraud, deceit, or misrepresentation, including Wisconsin.
Hurley’s plan involved pretexting, the use of subterfuge or pretense to gather information. The concept of utilizing subterfuge to gain an advantage for a client is a substantive topic of great interest and discussion in the lawyer regulatory community. As a practical matter, pretexting has only been allowed in only limited circumstances. Certain jurisdictions allow pretexting to be used as a tool available solely to law enforcement authorities. Some jurisdictions allow the use of subterfuge in certain commercial and employment law situations. Very few appellate cases discuss the extent by which an attorney, in a private capacity, can utilize deception in order to gain an advantage on behalf of a client. Most jurisdictions have simply not considered the issue. The most recognized exception to this situation has been in the use of testers in housing discrimination actions. See generally, Lisa G. Lerman and Philip G. Schrag, Ethical Problems in the Practice of Law (Aspen 2005) at 553-557.
In 2006, substantial media coverage emerged concerning the use of pretexting by corporate agents for Hewlett-Packard. There, investigators used private information in order to trick telephone companies into turning over the phone records of both Hewlett-Packard board members and a number of journalists. Later, media attention focused upon criminal proceedings brought against these former Hewlett-Packard employees. See http://www.nytimes.com/2006/09/08/technology/08hp.html?ex=1315368000&en=9a0c6a279635c06b&ei=5090&partner=rssuserland&emc=rss. Subsequently, seminar sessions were convened to discuss the ethics issues surrounding pretexting. At the American Bar Association’s 33rd Annual National Conference on Professional Responsibility in Chicago in June 2007, a session was entitled: Investigators (and Lawyers) Gone Wild”-Pretexting: Are Lawyers Responsible for Directing Undercover Work. At the August 2007 annual conference of the NOBC in San Francisco, lawyer disciplinarians from around the country attended a plenary session entitled “Pretexting” and Other Uses of Deception in Investigations. Panelists discussed the use of deception by lawyers or agents of lawyers in order to discover information relevant to matters in controversy. Panel participants spoke at length about initiatives within the ABA to consider possible Model Rule changes addressing the use of deception.
In 2007, the New York County Lawyers' Association ethics committee issued an opinion on pretexting and dissembling. Acknowledging that there is no nationwide consensus on the issue, the NYCLA concluded that it is generally unethical for a non-government lawyer to utilize and/or supervise an investigator who will employ dissemblance in an investigation if the dissemblance is unlawful; rises to the level of fraud or perjury; unlawfully violates the rights of third parties; otherwise violates the state lawyers ethics code, or where other lawful means of obtaining evidence is available. (New York County Lawyers' Ass'n Comm. on Professional Ethics, Op. 737 (May 23, 2007)). Nevertheless, under certain exceptional conditions as set forth in the opinion, dissemblance by a non-attorney investigator supervised by an attorney would be ethically permissible in New York. Lawyers who supervise investigators employing dissemblance, however, were warned to interpret the exceptions narrowly. These exceptional circumstances are limited to otherwise lawful activity undertaken solely for the purpose of gathering evidence. Even in these cases, a lawyer supervising investigators who pretext would be acting unethically unless (i) either (a) the investigation is of a violation of civil rights or intellectual property rights and the lawyer believes in good faith that such violation is taking place or will take place imminently or (b) the dissemblance is expressly authorized by law; and (ii) the evidence sought is not reasonably and readily available through other lawful means; and (iii) the lawyer’s conduct and the investigator’s conduct that the lawyer is supervising do not otherwise violate the New York Lawyer’s Code of Professional Responsibility (the “Code”) or applicable law; and (iv) the dissemblance does not unlawfully or unethically violate the rights of third parties. These conditions are narrow. Attorneys must be cautious in applying them to different situations. In most cases, the ethical bounds of permissible conduct will be limited to situations involving the virtual necessity of non-attorney investigator(s) posing as an ordinary consumer(s) engaged in an otherwise lawful transaction in order to obtain basic information not otherwise available. The opinion appears at: http://www.nycla.org/siteFiles/News/News63_0.pdf
The most recent lawyer disciplinary decisions dealing with pretexting include Bar Counsel v. Kevin P. Curry, No. SJC-09904, Massachusetts Lawyers Weekly No. 10-025-08 (Mass. Feb. 6, 2008) and Bar Counsel v. Gary C. Crossen No. SJC-09905, Massachusetts Lawyers Weekly No. 10-026-08 (Mass. Feb. 6, 2008). Both Curry and Crossen were disbarred. Earlier, a third lawyer, Richard K. Donahue, was suspended for three years. Bar Counsel v. Richard K. Donahue, 22 Mass. Att’y Disc. R. 193 (Mass. Dec. 7, 2006). Discipline was meted out to all three men based upon their scheme to discredit former state court Judge Maria Lopez, now a daytime television personality. See NOBC Case of the Month (May 2005) at http://www.nobc.org/cases/0505.asp.
The lawyers created a phony job interview scenario to lure Judge Lopez’ former law clerk into revealing whether or not the judge was predisposed to ruling against their client. To defend themselves against the disciplinary charges, the lawyers asserted that the phony job ruse was activity akin to the use of ‘testers’ in discrimination cases. The Massachusetts Court rejected this defense and, in the Curry disbarment opinion, noted:
Unlike discrimination testers or investigators who pose as members of the public in order to reproduce pre-existing patters of conduct, Curry built an elaborate fraudulent scheme whose purpose was to elicit or potentially threaten the law clerk into making statements that he otherwise would not have made….This coercive and deceptive process was designed to trick the law clerk, not to note or reproduce his usual behavior.
The Court also declined to analogize the conduct of the conspirators with the pretexting in government undercover operations, noting in the Crossen disbarment opinion:
Whatever leeway government attorneys are permitted in conducting investigations, they are subject not only to ethical constraints, but also to supervisory oversight and constitutional limits on what they may and may not do, constraints that do not apply to private attorneys representing private clients…Constraints on government agents ensure that even undercover investigations conducted by government attorneys are reigned in by the stringent constitutional requirements of fair and impartial justice. Crossen’s argument that he felt empowered as a private attorney to conduct the same kind of sting operation he could have conducted as a prosecutor both overstates the independence of prosecutorial power and understates the unique restraints and oversight on that power.
Hurley hired his private investigator’s husband, Sheridan Glen, to take part in the sting operation in the Sussman matter. Glen sent Scott correspondence on the letterhead of a company allegedly located in Springfield, Illinois, named Thermetric, Inc. (A search of the Illinois Secretary of State’s Office website at the time of this writing reveals no record for an Illinois corporation by that name.
See http://www.ilsos.gov/corporatellc/CorporateLlcController.)
The correspondence read, in relevant part:
Thermetric, Inc., a consulting company, is conducting research into computer usage preferences of students and young adults, ages 13 to 21. In order to accomplish our research goals, we offer you, as participant, new computer equipment, which is to be used for a predetermined period, after which we observe your program usage patterns…You have been selected to receive a brand new Hewlett Packard laptop computer, free of charge…Here is how the program works: you will simply swap your existing computer with the new model, (a receipt will be given you) which you will then use in your normal computer activities for ninety days. During this period, your current computer will be stored. We ask that you use only this new computer during this time. At the end of the period, we will contact you again and you may then return the computer in exchange for your old unit, or keep the new one, free of charge.
In furtherance of the scheme, Hurley arranged for someone to purchase a new laptop computer for Scott. On August 24, 2004, with Scott’s mother present, Glen met Scott and exchanged the old desktop computer for a new laptop. After proposing the exchange, Glen afforded Scott the opportunity to erase from his computer whatever he wanted. At the time of the exchange, Scott lived with his mother in Indiana and was 15 years old. He had previously lived away from his mother for periods of time. His mother, a recovering alcoholic, had not had a drink for approximately one year. That same day, as Hurley instructed, Glen delivered Scott’s computer to a forensic computer specialist in Milwaukee. Numerous pornographic images involving adults, children, and animals were found on Scott’s computer, having been accessed in April 2004. Meanwhile, Scott and his mother became suspicious about the computer swap and contacted the Dane County District Attorney’s Office. Detective Frey investigated and determined that the man who visited Scott’s home was Glen. The investigator’s identity was confirmed by Scott’s mother from a photo array presented by Frey.
Having confirmed that Scott’s computer contained images of child pornography, Hurley and his forensic computer specialist recognized that possession of the computer could be criminal. On September 16, 2004, Hurley contacted prosecutors and informed them of his “investigation” and its results and to attempt to negotiate a protective order regarding the computer. Lengthy negotiation and litigation ensued and the prosecutor’s office lodged a grievance against Hurley with the Office of Lawyer Regulation. Prior to Mr. Sussman’s trial, the parties litigated the admissibility of the contents of Scott’s old computer. The Court ruled that because the evidence related to Scott’s activities in 2004, the evidence was too remote in time from the charged offenses to be relevant. It appears that the manner in which the evidence was obtained was not a factor in the Court’s ruling. Ultimately, the evidence was not offered or received. A jury convicted Sussman after nine days of trial and nine hours of deliberation on eighteen of twenty counts, declining to convict the defendant for allegedly displaying pornographic material to Scott. He was sentenced to 13 years in prison.
Eventually, formal disciplinary charges were filed against Hurley for orchestrating the covert operation against Scott. Hurley defended himself by arguing that he had no reasonable alternative but to gain access to Scott’s computer in the manner that he did.
The Hearing Referee agreed with all of Hurley’s arguments and concluded that ethics standards had not been violated and that Hurley had not violated the prohibition against engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation. Indeed, the Referee determined that Hurley had an obligation under the Sixth Amendment to organize and conduct his private sting operation. She ruled:
Mr. Hurley held a man’s life in his hands. His client faced life in prison. The trial was imminent. He had a reasonable, factually supported, and good faith belief that Scott’s home computer contained exculpatory evidence, making the computer the lynch pin of Mr. Sussman’s defense. He had a reasonable, factually supported, and good faith belief that Scott knew how to and would destroy the evidence on his home computer if he were given advance notice of Mr. Hurley’s suspicions. So, to provide Mr. Sussman with his constitutionally protected right to effective assistance of counsel… Mr. Hurley had to devise a plan to obtain the potentially exculpatory evidence in a way that would not give Scott advance notice… Mr. Hurley faced an extremely difficult calculus: risk violating a vague ethical Rule or risk breaching his duty zealously to represent his client and violating his client’s constitutionally protected right to effective assistance of counsel. The decision Mr. Hurley made was not an unfit one; it was a necessary one. His conclusion that he must pursue potentially exculpatory, lynch pin evidence by means of a deceptive private investigation does not bring into question his fitness for the practice of law. It affirms his fitness as a criminal defense attorney. He acted reasonably and with adequate safeguards. He acted as the Constitution compelled him to act.
The Referee further concluded the disciplinary standard prohibiting a lawyer from engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation was “vague as applied.” She made this determination based on the fact that Wisconsin disciplinary authorities have not prosecuted any criminal law prosecutors who “frequently supervise a variety of undercover activities and sting operations carried out by non-lawyers [and] who use deception to collect evidence,” including misrepresentations as to identity and purpose.
The Office of Lawyer Regulation has appealed the Referee’s decision to the Wisconsin Supreme Court and the matter is on a briefing schedule.
Office of Lawyer Regulation v Stephen P. Hurley, Case No. 07 AP 478-D (Referee’s Report and Recommendation, February 5, 2008).
As an aside, the Referee in the case, Judith Sperling-Newton, is a Madison lawyer who is a member of a local law firm called the Law Center for Children & Families. Ironically, in light of the issues in this case, she practices in the areas of Child Protection and Children’s Rights. http://www.lawyers.com/Wisconsin/Madison/The-Law-Center-for--Children-and-Families-2768056-f.html?
