Concept
Pautler: Deception and Rule 4.3
Communications with unrepresented persons
Pautler: Deception and Rule 4.3
re Pautler shows Rule 4.3 enforced against a lawyer who deceived a person without counsel. The Colorado Supreme Court found that Pautler, who represented the People of the State of Colorado, deceived Neal, an unrepresented person, and then took no step to correct the misunderstanding.1 In its Model Rule form, the rule bars a lawyer who deals on behalf of a client with an unrepresented person from stating or implying that the lawyer is disinterested. It requires reasonable efforts to correct a misunderstanding of the lawyer's role that the lawyer knows or reasonably should know exists. And it forbids legal advice, other than the advice to secure counsel, when the person's interests conflict or may conflict with the client's.2 The court applied Colorado's wording, which differs from the Model Rule, so the discussion below marks where the two versions part.
The case begins with a stipulation. The parties agreed that Neal was an unrepresented person, and the opinion records that Pautler acted for the State at all relevant times.3 Both conditions that bring Rule 4.3 into play were therefore settled before the court examined any conduct: a lawyer acting for a client, and a person without counsel.
The court then made three findings. First, Pautler deceived Neal and took no steps to correct the misunderstanding, either at the time of arrest or in the days following. The court called that failure an opportunity lost.4 Second, it found it unclear whether Pautler actually gave Neal advice, but noted that he certainly did not tell Neal to retain counsel.5 Third, it held that Pautler went further than implying he was disinterested, because he purported to represent Neal. On that basis it concluded that his conduct without doubt violated the letter of the rule.6
The step from implying disinterest to purporting to represent matters because the two false impressions sit at different distances from the truth. A person who thinks the lawyer is disinterested believes the lawyer has no side, and that mistake at least leaves open the possibility that the lawyer's interests run against the person's. A person who thinks the lawyer is the person's own lawyer believes the lawyer is working for the person. That is the most trusting position an unrepresented person can occupy, and the one in which the person is least likely to guard anything. A lawyer who creates the stronger false impression crosses the first duty's line by a wider margin. The missing referral to counsel compounds the problem, because telling an unrepresented person to get a lawyer is the one piece of advice the rule always allows, and it would have given Neal the check he lacked.
The Colorado text the court quoted differs from the Model Rule in two ways that an examinee must keep apart. It opened by requiring that the lawyer "shall state that the lawyer is representing a client," an affirmative duty of identification that the Model Rule's three sentences do not contain. It also closed with a bar on any advice to the unrepresented person other than to secure counsel, with no condition that the lawyer know or reasonably should know of a conflict or a reasonable possibility of one.7 An exam governed by the Model Rule will use the Model Rule's text, so the useful way to use the case is to run its facts through that text one duty at a time.
The third step marks the sharpest difference between the two wordings. Under Colorado's text, proof that Pautler gave any advice other than a referral would have established a breach of that duty without more. The Model Rule adds a conflict condition, which a person arrested while the lawyer acts for the State would plainly satisfy. The first two steps decide the case on the facts the court did find, and they apply the same way under either wording.
The court then turned to whether anything could excuse the conduct. It refused to graft onto the rule an exception that would justify or excuse Pautler's actions, citing reasons substantially similar to those it had given earlier in the opinion, and it affirmed the hearing board's finding of a violation.12 The logic of the refusal is easy to see. An unrepresented person has no lawyer to check what the other side's lawyer says, so the person's trust is exactly what is at risk. If a lawyer could escape the rule by deciding that a deception served a good end, the person's protection would depend on the judgment of the very lawyer the rule restrains. A lawyer who deceives will nearly always think the deception useful to the client, so an exception built on that belief would swallow the duty. The board's findings on potential injury also show how fragile the supposed usefulness can be. Had Neal discovered the deception, the negotiating gains made by Sheriff Moore might have been lost, and Neal could have ended communication and resumed or escalated his crime spree.13
An essay built on these facts asks whether a worthwhile purpose can excuse deceiving an unrepresented person about the lawyer's role. The answer in this opinion is no. Compliant conduct is easy to picture.
The comparison locates the line. A lawyer for the State may talk with an unrepresented person and may negotiate, as the earlier discussion of negotiating explained. The lawyer loses that freedom by deceiving the person, by claiming to represent the person, or by leaving a known misunderstanding in place.
After affirming the violation, the court turned to the sanction. The hearing board had reached its decision by applying the ABA Standards for Imposing Lawyer Sanctions, which require examination of four things: the duty violated, the lawyer's mental state, the potential or actual injury caused by the misconduct, and the existence of aggravating or mitigating factors.14 The board's findings on two of those factors are the ones the opinion reports:
- Mental state: the board ruled that Pautler's mental state was "not only knowing, it was intentional."
- Injury: the board found actual injury to the administration of justice and substantial potential injury.15
The injury findings show that the harm counted in a sanction analysis is wider than the deceived person's own loss. The board found that Pautler's conduct contributed to a perceived lack of trust between Neal and his lawyers, adversely affected later judicial proceedings, and led to additional hearings to explore the factual and legal issues the deception created. It described the harm as perhaps unquantifiable but certainly present. It also considered the implications of whether Pautler actually became Neal's lawyer.16 Because actual injury to the legal system and potential injury both count, a lawyer cannot answer a charge by pointing to the absence of a measurable loss to the person deceived. The stipulation that Neal was unrepresented is what placed the case under Rule 4.3 in the first place. The next section takes up why that single fact decides which rule governs a lawyer's contact with a non-client.