High court suggests ethics revision

SALEM (AP) - The state Supreme Court proposed Wednesday that any attorney - private lawyers as well as government prosecutors - be allowed to supervise covert investigations.

The court's move is part of an effort to alter Oregon State Bar ethics rules that have been hindering federal undercover operations in Oregon for more than a year.

The Supreme Court last year issued a ruling that strictly interpreted a Bar rule against attorneys engaging in fraud and deceitful acts.

While the case involved a private lawyer brought up for disciplinary action, the Supreme Court said the rules cover all attorneys - including those in government.

That unnerved federal prosecutors who, under Justice Department guidelines, must oversee covert investigations that commonly rely on misrepresentation and deceit.

Since then, the state Bar association, state authorities and federal officials have been trying to iron out a solution that would make it clear that government prosecutors can supervise undercover probes.

Earlier this year, the state Bar suggested a change in the ethics rules that would permit government lawyers to oversee and advise clients in investigations involving "misrepresentation or other subterfuge" without violating ethics regulations.

On Wednesday, Justice Michael Gillette said the suggested rule change should be broadened. The court voted to return the matter to the Bar to consider exempting private lawyers as well. The motion, approved by six of the seven justices, says the court will adopt the rule change if the Bar makes the revision proposed by the court.

Under procedures for adopting disciplinary rules, the court has to either accept the Bar's version or reject it and send the matter back to be revised by the group's House of Delegates. The court has the final say in any case.

Chief Justice Wallace Carson Jr. didn't vote and said afterward he opposes loosening the rule.

Several other justices said they disliked altering the ethics standards but that the Bar and law enforcement authorities had made a good case.

"It's unpleasant for me to think about changing our fundamental rule against dishonesty," said Justice Robert Durham.

Justice Tom Balmer said the rule change isn't as drastic as some might perceive.

Portland lawyer Steve Wax, federal public defender for Oregon, said the Supreme Court proposal improved the rule change by eliminating distinctions between government and private attorneys.

But he said he thinks it's unnecessary to change the ethics standards and that "too much was read into" the court's ruling last year.

"I don't believe the decision prohibited lawyers from giving lawful advice about legal activities," he said. "Because undercover work is legal, there was nothing in the decision that prevented any lawyer from advising a client who had a question about such activity."

Portland attorney Charlie Williamson, a member of the Bar Board of Governors, predicted the delegates will approve the Supreme Court's proposal.

He said most Bar opposition to the rule change involved the wording exempting only government lawyers from the ethics standards.

"People felt it should apply to everybody or nobody," he said.

The proposed rule also says a lawyer can advise about or supervise covert activity only when the attorney "in good faith believes there is a reasonable possibility that unlawful activity is taking place or will take place in the foreseeable future."

Attorney General Hardy Myers said he was satisfied that the rule change would allow his investigators to operate covertly without ethics violations.

Federal officials say last year's Supreme Court decision has stymied major criminal investigations because tactics such as eavesdropping by phone or body wires require undercover operatives to misrepresent their identities and the purposes of conversations.

The ethics rules "act as a massive roadblock" to federal law enforcement activities, the U.S. Justice Department says in documents filed in a lawsuit it brought seeking to prevent the Bar from enforcing the standards against federal attorneys.

The case is pending in U.S. District Court in Eugene.