NO LIE: OREGON LAW HALTS UNDERCOVER OPERATIONS

PORTLAND - If you're a federal agent in Oregon these days, the law
requires you to tell the truth, the whole truth and nothing but the
truth - even when you're working undercover.

And that has brought major law-enforcement operations all over the
state to a virtual standstill.

"I am a drug cop; please sell me some heroin. That's literally what's
required," explains Joshua Marquis, the Clatsop County district
attorney.

A sweeping ruling last year by the state Supreme Court mandated that
all lawyers - even government prosecutors overseeing organized crime
and narcotics cases and state investigators conducting consumer-fraud
and housing-discrimination probes - must abide by the Oregon state
bar's strictures against dishonesty, fraud, deceit and
misrepresentation.

Under the court's interpretation, a prosecutor who encourages an
undercover officer or an informant to lie or misrepresent himself
could lose his license to practice law.

The provision has been most problematic for federal prosecutors, who
typically have a much more intense day-to-day role in overseeing
major investigations conducted by the FBI and the Drug Enforcement
Administration (DEA) to ensure they comply with complex provisions of
federal law.

As a result, the state attorney general's office, the FBI and the DEA
have halted virtually all big undercover operations, and local police
agencies have canceled most covert operations in drug cases that
could end up in federal court.

"People in this state are not receiving the protection they're
entitled to," said Philip Donohue, acting special agent in charge of
the FBI office in Portland.

"This has impacted a substantial amount of the criminal work that
would ordinarily be done within the state of Oregon."

Lawyers for the state bar have met repeatedly in recent months in an
attempt to craft a way around the restriction, perhaps by exempting
government prosecutors.

But they have run into deep philosophical divisions over the role of
lawyers in overseeing covert probes - and whether modern law
enforcement is simply relying too heavily on trickery and
misrepresentation.

Because no one really wants to halt police-undercover work, "It
sounds like there should be a very simple solution," said Ed Herden,
president of the state bar and a Portland lawyer.

"Everyone agrees that lawyers should not misrepresent themselves as
something other than what they are. But (with the restrictions in
place) ... how do we provide the police with meaningful advice as to
how to act in a legal manner?"

The dilemma began with a private attorney who, seeking to gain
information for a civil lawsuit in an insurance case, conducted his
own sting operation and made phone calls in which he represented
himself as a doctor.

The Oregon Supreme Court last August found that the lawyer had
engaged in dishonest conduct in violation of state bar rules. The
court also ruled that the ethics code does not contain exceptions for
government lawyers overseeing legal law-enforcement operations.

Although the Justice Department always has required its lawyers to
abide by individual states' legal ethics rules, a controversial
federal law passed in 1999 known as the McDade law makes it explicit,
legally requiring federal prosecutors to abide by all state bar
ethics rules.

As a result, the U.S. attorney in Oregon, Mike Mosman, has pulled his
lawyers out of undercover operations.

And the FBI has suspended a child-pornography investigation developed
by undercover agents and halted the use of cooperating witnesses in
at least two major drug cases, three extortion cases and a major
white-collar crime investigation.

Local district attorneys do not have the McDade law holding their
feet to the fire. But most police agencies prefer to have a
prosecutor overseeing complex investigations. "The federal agencies
are now not willing to look at our cases if they involve any kind of
undercover activity," said Lt. Gary Stafford of the Portland Police
Bureau's drug and vice division.

"That kind of puts a big roadblock in our way as far as taking down
any of the substantial quantity dealers that should be prosecuted
federally."

Earlier this month, according to Stafford, federal prosecutors
rejected a major case involving "club" drugs, such as Ecstasy,
because it involved undercover operations and confidential informants.

The state bar attempted one fix, an amendment to the ethics rules
that exempted lawyers who are conducting or supervising operations
involving "legal covert activity" - as long as they didn't
participate in the operations.

The Supreme Court in April rejected that policy as too broad, so the
state bar's board of governors is trying to draft another amendment.

The problem is, many lawyers, especially defense lawyers, think that
undercover operations have gone too far and that government
prosecutors are taking too big a role in conducting them.