The Sundance Channel was doing a “Law and Order” marathon this week, and I happened to see an episode from 2002 that I had missed. It was based on the Pautler case in Colorado from the same year.
In “DR 1-102,” Assistant DA Serena Southerlyn (Elisabeth Rohm) deals with a hostage crisis in which a man suspected of bludgeoning two women to death claims he will release his captive, held at knifepoint (above), if he can consult with an attorney. Southerlyn volunteers to enter the scene, and obtains both the hostage’s release and the killer’s surrender, but only by deceiving him into believing that she is his lawyer, and not a prosecutor working for the police and the State. Although Southerlyn is hailed as a hero, the bar seeks to disbar her, charging her with violating Disciplinary Rule 1-102 (now New York RPC 8.4 d., which prohibits lawyers from lying. .
Actually, Serena did a lot more than that, as did her model, Mark Pautler, the Jefferson County (Colorado) assistant D.A. whose real life conduct created a legal ethics dilemma that is debated to this day.
On June 8th, 1998, Chief Deputy District Attorney Mark Pautler arrived at a gruesome crime scene where three women lay not just murdered, but chopped in the skull. All had died from hit in the head with a wood splitting maul. The killer was William Neal, who had apparently abducted the three murder victims, one at a time, and killed them over a three-day period. Now, police said, he was at another locale, having released three hostages he had held in terror for about 30 hours. Neal left in the apartment a tape recording that detailed all of his crimes, including a fourth murder and rape at gun point.
Neal contacted police at the apartment using his cell phone and personally described his crimes in a three-and-a-half hour conversation. The officer speaking with Neal took notes of the conversation and occasionally passed messages to Pautler and other officers at the scene. A skilled negotiator, she urged the maniac to surrender peacefully. Efforts to ascertain the location of Neal’s cell phone were unsuccessful, and it was feared that if Neal did not surrender, others would die.
Neal made it clear he would not surrender without legal representation. The police did not trust the public defenders office to handle the situation, fearing that a defense counsel’s advice might lead Neal not to place himself in police custody. Pautler also believed that a public defender would advise Neal not to talk with law enforcement. Neal was savvy enough, he felt, that a police officer could not effectively pretend to be his lawyer, so Pautler agreed to impersonate a defense attorney over the phone He told Neal that his name was was “Mark Palmer.”
Though in the ensuing phone conversation Pautler tried to avoid giving direct legal advice, it was clear that Neal believed “Mark Palmer” worked for the public defender’s office and represented him. And the deception worked: Neal eventually surrendered without further incident.
Not surprisingly, the Colorado Bar had problems with Pautler’s conduct. He was charged with violating two ethics rules, the equivalent of the one used in the “Law and Order” episode and also Colorado Rule 4.3, which requires a lawyer to inform an unrepresented party so it is clear that he isn’t representing him, and to give no legal advice other than to get an attorney. They could easily have charged him with violating others. like Rule 1.3, requiring diligent representation (Call me a stickler, but trying to trick your client into surrendering to police isn’t what the rule has in mind), Rule 1.4, which requires a lawyer to keep a client informed (“Oh: I’m really a prosecutor!“), Rule 1.6, Confidentiality (Pautler shared what Neal told him with police; a lawyer can’t do that! ) Rule 1.7, Conflicts of Interest (Ya think?) and Rule 4.1, which prohibits lawyers making false statements of fact, like “I’m here to help you.”
Pautler handled his professional crisis perfectly: he told the ethics panel that he had indeed knowingly violating the ethics rules, said that in similar circumstances he would do so again in the public interest, and would accept the consequences, but felt that the circumstamces justified his actions. The “Law and Order” episode, while dwelling on some details not present in the Pautler case, did focus on the ultimate ethics issue: was the circumstance urgent and dangerous enough to provide an exception to the rules, which specify exceptions, and don’t include an “ax-murdering rapist” one that allows a lawyer to lie, pretend to be a defense lawyer, and generally rob an individual of his civil rights?
Ethics Alarms has often cited “The Ethics Incompleteness Principle,” which holds that mankind can’t successfully construct ethics rules that are absolute and that apply all the time. We can always choose to breach rules and laws, if we are convinced, after valid analysis, that in a particular, rare situation following them will lead to more harm than not. This requires courage, however, for if the exception is not to destroy a rule that is important and necessary, violating it must still carry consequences. (This was, in fact, the conclusion reached by the “legal ethics expert” who testified in the TV episode.)
If you are going to act on “The Ethics Incompleteness Principle,” you better be prepared to get slammed for it, and you better be right.
The Bar found Pautler guilty of willfully violating the rules. “[I]t is the conduct of the lawyer which dictates whether there is a violation of The Rules of Professional Conduct, not the effect of that conduct or the person or entity to which the conduct is directed,” it wrote, taking the absolutist approach. “[O]nce the door of ‘justifiable deception’ is opened, it takes little imagination to speculate about conduct
which could result.”
The Bar then suspended Pautler’s license for three months, but suspended the suspension for a year-long probationary period. In other words, while it was a blemish on his record (or a badge of honor?) his practice of law was never interrupted.
Pautler appealed to the Colorado Supreme Court, which affirmed the sentence. “[T]he fact that [Pautler] lied for what he thought was a good reason does not obscure the fact that he lied-in an important circumstance and about important facts,” the majority wrote. Then it back-tracked a bit, and seemed to accept that the rules might have exceptions, while maintaining that this wasn’t one of them, saying,
“[u]ntil a sufficiently compelling scenario presents itself and convinces us our interpretation of Colo. RPC 8.4(c) is too rigid, we stand resolute against any suggestion that licensed attorneys in our state may deceive or lie or misrepresent, regardless of their reasons for doing so.”
I find the rhetoric in both opinions oddly out of sync with the three month suspended suspension, which is essentially a slap on the wrist and lenient given the extent of the breach. [In the fictional version, Serena Southerlyn received no sanctions at all, on the grounds that this was a gray area, she was acting in the public’s interest, and there was little chance that such a situation would arias again (which is a terrible reason).]
What do I think? In 2002 I asked my old professor of prosecutor ethics what he thought; he was a former Assistant U.S District Attorney. His answer surprised me. “Not only did Pautler do the right thing, I wouldn’t want a prosecutor on my staff who wouldn’t do as he did, with an ax murdering rapist at large,” he told me. “The rules weren’t written with ax murderers in mind. They don’t apply.”
His opinion counts a lot with me, but I’m still not sure. I admire Pautler, and I won’t second guess him. What he did was ethical, but it was also non-compliant and involved a serious rules violation, in fact many rules violations. He had to be punished, but no one can say he’s unfit to practice law.
I think the three month suspension was about right, but it shouldn’t have been suspended. The bar’s equivocal decision was a solution to a public relations dilemma: while Pautler was being celebrated as a community hero who saved untold women from being raped and chopped, it didn’t want to send a message that “We don’t want people like that as lawyers in this state!”