An online dictionary defines a sting operation as “a complicated confidence game planned and executed with great care (especially an operation implemented by undercover agents to apprehend criminals).” In law-enforcement contexts, covert investigation tactics are essential to obtaining evidence of criminal conduct committed by participants in sophisticated criminal enterprises. Evidence of common street crimes such as drug dealing and prostitution is often gathered with sting operations as well. Lawyers sometimes advise or supervise these activities to assure compliance with the law and admissibility of any evidence that is gathered.
Compare this with the sting operation carried out by a Madison, Wisconsin, criminal defense lawyer against the fifteen-year-old who accused his client of repeated sexual assaults beginning when the boy was nine years old.
The lawyer believed that the boy was lying and thought that the boy’s computer might contain evidence of the child’s independent interest in child pornography. The lawyer was concerned that the police investigator would not objectively seek and examine such evidence and that the boy might destroy evidence on his computer if given any warning.
The lawyer decided to retain a private investigator to trick the child and his mother into surrendering the boy’s computer and any evidence it might contain.
The sting consisted of offering, as part of a bogus research project, to exchange the boy’s computer for a new computer, free of charge. The boy agreed, and the lawyer discovered that the boy’s computer did indeed contain pornographic images.
Notwithstanding the computer evidence gained from the sting operation on the child witness, the client was found guilty of multiple felonies, including repeated sexual assault of the same child and possession of child pornography.
After the Dane County District Attorney complained to disciplinary authorities about the deception involved in the lawyer’s sting, the Wisconsin Supreme Court dismissed the misconduct charges against the lawyer. The court appeared to accept the referee’s characterization of the investigation as lawful and noted that the current ethics rule in Wisconsin, SCR 20:4.1, provides that “a lawyer may advise or supervise others with respect to lawful investigative activities,” even if deception is involved.
Regrettably, the court has chosen not to publish on its website its order dismissing the complaint (Office of Lawyer Regulation v. Hurley, No. 2007AP478-D, 2/11/09), presumably pursuant to SCR 22.23(1), which states: “With the exception of the supreme court’s disposition of a private reprimand or dismissal of a proceeding, the supreme court’s disposition of a proceeding under this chapter shall be published in an official publication of the state bar of Wisconsin and in the official publications specified in SCR 80.01. A party may file a request to publish a dismissal of a proceeding.”
Additional information on the case can be found in a Wisconsin State Journal article, an account published in Isthmus, and in the ABA/BNA Lawyers’ Manual on Professional Conduct (25 Law. Man. Prof. Conduct 115).