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.