Ethics Watch

July 14,2010

Office of Attorney Regulation Counsel

1560 Broadway, Suite 1800

Denver, Colorado 80202

Re: Request for Investigation of Scott S. McInnis, Esq., #10985

Dear Regulatory Counsel:

I am the Director of Colorado Ethics Watch, a non-profit government watchdog

group. I am requesting that you investigate possible violations of the Colorado Rules of
Professional Conduct by Scott S. Mcinnis, Bar Registration No. 10985. According to
media reports, Mr. Mcinnis leveraged his Congressional experience and expertise to
obtain a lucrative contract with a private foundation to write articles on water issues. Mr.
Mcinnis then submitted as his own work articles that were partially written by a water
engineer and partially copied from writings by Gregory Hobbs, then a water attorney in
private practice and now a justice of the Colorado Supreme Court. If these media reports
are correct, Mr. Mcinnis may have violated Rules 5.3 and/or 8.4 of the Colorado Rules of
Professional Conduct.

FACTS

Mr. Mcinnis served six terms in the United States Congress, representing
Colorado's Third Congressional District. Shortly after he left Congress in 2005, the
Hasan Family Foundation announced that Mr. Mcinnis would work as a senior fellow of
the Foundation on water and natural resource issues. Seeme Hasan, the chair of the
Foundation, was quoted as saying "When Rep. Mcinnis retired, we were concerned that
Colorado would lose a strong voice on water and natural resource issues, so we asked
him to serve as a senior fellow with the foundation.... Because the foundation is
committed to promoting education, we want Mr. Mcinnis to be available to any group
wanting to hear his expertise on these issues."l Mr. McInnis was reportedly paid
$300,000 to write a series of articles on water issues for the foundation over a two year
period.2

The Denver Post is now reporting that language in at least four of the articles
submitted by Mr. Mcinnis to the foundation "mirrors" a 1984 article entitled "Green
Mountain Reservoir: Lock or Key?" published by the Colorado Water Congress and

I Peter Roper, "Former congressman named fellow for Hasan Foundation," Pueblo

Chieftain, February 24, 2005 (Exhibit A).

2 Eli Stokols, "Plagiarism story could prompt calls for Mcinnis to end campaign,"

kwgn.com, July 13,2010 (Exhibit B).

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1630 Welton Street, Suite 415, Denver, CO 80202 I 303.626,2100 phone I 303.626.2101 fax I www.coloradoforethics.org
written by Justice Hobbs. 3 The Post article quotes Teresa Fishman of Clemson
University as stating that Mr. McInnis' articles appear to plagiarize both words and ideas
from Justice Hobbs' 1984 article and that "if McInnis were her student, she would give
him an 'F' and report him to the academic dishonesty council.,,4

A spokesman for Mr. McInnis told the Post that Rolly Fischer, a Glenwood
Springs engineer hired by Mr. McInnis as a researcher to assist him in his work for the
Hasan Family Foundation, "handled the portions that used Hobbs' work without
attribution."s However, the Post reported that Mr. Fischer's name does not appear on the
work submitted by Mr. McInnis to the foundation and that in 2005, Mr. McInnis told the
foundation's chair that "[a]ll of the articles are original and not reprinted from any other
source.,,6 Ms. Hasan released a statement to the media in which she said that the
foundation was never told that Mr. McInnis had hired a researcher to help him write the
articles and that the foundation never authorized Mr. McInnis to hire an advisor to help
him perform the work. 7

Mr. McInnis' most recent law firm biography identifies "Natural resources" as an
"area of focus" for his practice and touts his experience as a Congressman working
"aggressively to protect Colorado's water resources and preserve its federal open
spaces."s

ANALYSIS

Colo. R.P.C. 8.4(c) provides that it is professional misconduct for an attorney to

"engage in conduct involving dishonesty, fraud, deceit or misrepresentation." There
should be little room for debate that if Mr. McInnis knowingly copied Justice Hobbs'
work and passed it off as his own for substantial compensation, that would constitute
misconduct under the Rule.

Even if it is true that Mr. McInnis did not know of the apparent plagiarism, he
may still have engaged in conduct involving dishonesty or misrepresentation under Rule
8.4. The Hasan Family appears to have been misled into believing that Mr. McInnis was
going to perform all of the work himself, not hire a research assistant to write so much of
the work that significant examples of plagiarism could appear in the articles without Mr.

3 Karen E. Crummy, "McInnis' articles for foundation lift ideas, words directly from 20­

year-old essay," The Denver Post, July 13,2010 (Exhibit C).

4 Id.

5 Id.

6 Id.

7 Ernest Luning, "McInnis plagiarism charges called 'double disappointment,''' The

Colorado Statesman, July 13,2010 (Exhibit D).

8 Hogan Lovells, "Scott McInnis - Our People," retrieved on July 13,2010 from

http://www.hoganlovells.comJourpeoplefDetail.aspx?attomey=ded929c8-1677-402d-b379­
bd176ea7c331 &print=true (Exhibit E).

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McInnis' knowledge. 9 Separate from the issue of plagiarism, Mr. McInnis' failure to
advise the Hasan Family that a research assistant had performed significant work on the
project he was compensated to do may rise to the level of dishonesty, deceit or
misrepresentation for purposes of Colo. R.P.C. 8.4. See People v. Rosen, 199 P.3d 1241,
1246 (Colo. O.D.P. J. 2007) (attorney violated Rule 8.4(c) by representing to insurance
company that his client was alive when he knew client had died). The Hasan Family
apparently believed they were going to receive original works from a lawyer whose
experience in Congress made him a water expert; they should have been advised that a
non-attorney engineer was going to perform part of the work.

In addition, the Rules require that "a lawyer having direct supervisory authority
over the nonlawyer shall make reasonable efforts to ensure that the person's conduct is
compatible with the professional obligations ofthe lawyer." Colo. R.P.C. 5.3(b).
Speaking of lawyers who hire nonlawyer assistants, the Comments to the Rule state that
"A lawyer must give such assistants appropriate instruction and supervision concerning
the ethical aspects of their employment... and should be responsible for their work
product. The measures employed in supervising nonlawyers should take account of the
fact that they do not have legal training and are not subject to professional discipline." In
this case, Mr. McInnis was responsible for the work product of his assistant. Even if Mr.
McInnis did not knowingly approve of the plagiarism, the work was published under the
name of Mr. McInnis as a lawyer and former Congressman who held himself out as a
water expert. The circumstances call into question whether Mr. McInnis adequately
supervised the assistant who is said to have incorporated Justice Hobbs' writing into the
work later delivered to the Hasan Foundation as the original writing ofMr. McInnis.

All of that assumes that the version of events attributed to Mr. McInnis in media
accounts is correct. However, Mr. Fischer re~ortedly told a reporter that "Scott's
responsible for it," referring to Mr. McInnis.! Of course, if Mr. McInnis was aware that
the materials he submitted to the Hasan Family Foundation contained plagiarized
material, it would be hard to avoid the conclusion that he engaged in misrepresentation
prohibited by Rule 8.4.

Based on these facts, it appears that Mr. McInnis may have violated the Rules of
Professional Conduct. We ask that your office investigate and make a determination
whether further action is warranted.

9 See Crummy, The Denver Post, July 13,2010 (Exhibit C); Luning, The Colorado

Statesman, July 13, 2010 (Exhibit D).

10 John Colson, "Foundation responds harshly to questionable essay by McInnis,"

Glenwood Springs Post Independent, July 14,2010 (Exhibit F)

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 Please let me know if I can provide further information. Thank you for your
attention.

Very truly yours,

~) ~ ~

~vrC/~-

LUIs Toro

Director

Enclosures