Tuesday Talk*: Lawyer or Law Enforcement?

A deputy out of Crazy Joe’s old office got a bright idea.

A Maricopa County Sheriff’s Office deputy is under investigation for allegedly posing as a defense attorney in a failed attempt to trick a woman and arrest her.

Andy Marcantel, a partner with the Attorneys for Freedom Law Firm, said that Deputy Jeff Miller pretended to be a lawyer at his firm on a phone call four months ago.

It’s long been the law that police can use deception as a tool of law enforcement, and the Supreme Court on down has no issue with cops lying to people in order to get them to say and do things contrary to their rights and interests for the sake of getting a confession, even if the risk of it being false is insufferably high. But this was a variation on that theme.

Marcantel represents a minor in a criminal case. The boy’s mother had an outstanding warrant for failing to appear in a separate past case. The deputy is accused of calling the mother under the ruse to try and lure her to the law firm in order to arrest her.

Fortunately, mom didn’t fall for the ruse, smelling a rat and calling the law firm, which then called the deputy’s number and learned who was impersonating a lawyer at their firm.

There are some interesting twists in what happened here that warrant noting. The firm didn’t represent the mother, but the child. Then again, the child was a minor, and so the mother’s role in her child’s representation as parent and guardian is implicated.

Also here, there was no deceptive interrogation, although that might well have happened had the ruse worked and the deputy arrested the mother. The deception was directed to impersonating the child’s lawyer for the purpose of drawing mom out to be arrested. Ruses for this purpose aren’t entirely new, as there have been some rather humorous efforts to get people with warrants to walk in on their own by telling them they won the lottery and need to show up to claim their prize. Hilarity ensued.

But if the lottery ruse is fine, is impersonating a lawyer the same thing? The implications for the Fifth and Sixth Amendments are certainly present, and it would wreak havoc with the functioning of the legal system. Imagine, if you will, a defendant put into a visiting room and some random person walks in and says he’s the public defender. Is he, or is he a cop? Would the cop be practicing law without a licence, often a crime in itself, and would anybody care? He would surely be violating the defendant’s right to counsel, but then, if lying to defendants is a useful law enforcement tool at all, why not use it to its best advantage? Why should pretending to be a lawyer be off the table?

In the Maricopa case, the deputy affirmatively claimed to be a lawyer with a law firm representing a particular defendant to his mother. The deputy has no duty under the Code of Professional Conduct, as he’s not a lawyer, so what prevents him from doing so? What are the implications of his doing so? Does this constitute a violation of constitutional rights, and if so, whose? Will anyone care enough to stop this, or any number of variations on a theme, from happening? Is there a legal basis to do so?

*Tuesday Talk rules apply.

26 thoughts on “Tuesday Talk*: Lawyer or Law Enforcement?

  1. Hal

    “The deputy has no duty under the Code of Professional Conduct, as he’s not a lawyer, so what prevents him from doing so?”

    Simple decency? Some shred of conscience? Am I getting warm?

  2. Brian E Neathery

    Would it make any difference if he’d claimed to be a non-lawyer employee of the law firm?

    1. C. Dove

      That question was . . . not very well thought out. “Hi, this is Sergeant Hartmann, I mean, uh, Joe, a paralegal working with Low, Ball, and Lynch.* Our firm represents Saul Goodman. I understand your a witness in that case. The partners asked me to call you and see if you could come down to our office for a quick interview.”

      * Real firm, name used for educational purposes only. I have no affiliations with the firm.

  3. Hunting Guy

    No difference between a police officer and a lawyer.

    Yevgeny Zamyatin.

    “Don’t forget that we lawyers, we’re a higher breed of intellect, and so it’s our privilege to lie. It’s as clear as day.”

  4. John Barleycorn

    10 bucks say you couldn’t get 10 members of your own guild to write let alone sign off on a letter or two in less than a week…

    Let alone get them or their investigators to pretend to be cops or prosecutors when interviewing certain “witnesses” to pending cases, if this sort of BS becomes fair game…..

    1. SHG Post author

      While I’m unaware of any cop being prosecuted for impersonation, let a defense investigator pretend to be a cop and the hammer will drop fast and hard. It’s happened many times already.

      1. John Barleycorn

        CDL’s need to start wearing capes or something, some sort of body suit might work too but I am thinking capes.

        Just because the cape flip before sitting down is hard to master and it will give the knuckleheads in your guild something to focus on in between nap time and the daily ABCs sing-along lesson after lunch…

  5. phv3773

    Cops lie when it’s expedient without concern about their long-term best interests, or to put it colloquially, they want to be dirty lying bastards without the reputation of being dirty lying bastards. But every time they lie, they reinforce public distrust. Still, there is a circle within which trust is an imperative; to be colloquial again, you don’t shit where you eat.

    If cops are allowed to lie, it’s up to them to be smart about it. The facts that this story went public and that you chose to blog about it suggest that it wasn’t smart.

    1. Elpey P.

      Memo to other users: don’t use imgshare.io. Or maybe it was me, and this attempt will be botched too. Like Deputy Miller, perhaps I could have used some professional advice.

      null

  6. Charles

    According to the Law Enforcement Code of Ethics of the International Association of Chiefs of Police: “Honest in thought and deed both in my personal and official life, I will be exemplary in obeying the law and the regulations of my department.” And their Standards of Conduct Model Policy, Section B(4) reads:

    “Unbecoming conduct – Officers shall not conduct themselves in a manner, on or off duty, that:
    a. Casts doubt on their integrity, honesty, moral judgment, or character;
    b. Brings discredit to this agency; or
    c. Impairs the agency’s efficient and effective operation.”

    But then comes footnote 4: “This policy recognizes the fact that there are legitimate needs for deception and/or non-disclosure of information in furtherance of the law enforcement purpose.”

    In the spirit of Groucho Marx: “Honesty is the best policy. If you don’t like it, we have other policies.”

  7. RTM

    Today’s lesson – Impersonating a police officer is a crime. But impersonating an officer of the court is okay. Where’s the logic? Maybe what’s good for the goose should be…

      1. RTM

        No. It’s not okay. That’s the only answer, in my book anyway. It’s black and white… no blue/grey area.

  8. El_Suerte

    If a cop pretending to be a defense attorney calls a suspect in jail, will they still wiretap the call?

  9. Chaswjd

    In the UK officers are not allowed to lie to suspects. That seems like a reform that could be adopted here.

  10. Lee Keller King

    Seems like a case of the Unauthorized Practice of Law, to me. If you hold yourself out as a lawyer in Texas, you can be prosecuted. Sounds fair in this case.

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