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End-of-life notice: American Legal Ethics Library

As of March 1, 2013, the Legal Information Institute is no longer maintaining the information in the American Legal Ethics Library. It is no longer possible for us to maintain it at a level of completeness and accuracy given its staffing needs. It is very possible that we will revive it at a future time. At this point, it is in need of a complete technological renovation and reworking of the "correspondent firm" model which successfully sustained it for many years.

Many people have contributed time and effort to the project over the years, and we would like to thank them. In particular, Roger Cramton and Peter Martin not only conceived ALEL but gave much of their own labor to it. We are also grateful to Brad Wendel for his editorial contributions, to Brian Toohey and all at Jones Day for their efforts, and to all of our correspondents and contributors. Thank you.

We regret any inconvenience.

Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.

Colorado Legal Ethics

III. ADVOCATE

3.1   Rule 3.1 Meritorious Claims and Contentions

3.1:100   Comparative Analysis of Colorado Rule

¥ Primary Colorado References: CO Rule 3.1
¥ Background References: ABA Model Rule 3.1, Other Jurisdictions
¥ Commentary: Model Rules of Professional Conduct (ABA 1998 Edition); Fleishman, Civil and Grievance Liability for Non-Meritorious Claims and Contentions, 46 Trial Talk 12 (Nov. 1997)

3.1:101      Model Rule Comparison

Colo.RPC 3.1 is identical to the Model Rule.

Colorado has added an initial paragraph to its Comment, which emphasizes that a lawyer has professional duties to assist members of the public to secure and protect available legal rights and benefits, and that each member of society is entitled "to seek any lawful objective through legally permissible means" and "to present for adjudication any lawful claim, issue or defense."

3.1:102      Model Code Comparison

DR 7-102(A)(1) provided that a lawyer may not "[f]ile a suit, assert a position, conduct a defense, delay a trial, or take other action on behalf of his client when he knows or when it is obvious that such action would serve merely to harass or maliciously injure another." Colo.RPC 3.1 differs from DR 7-102(A)(1) in these respects. First, the Colorado Rule requires that there be a basis for the litigation conduct involved that is "not frivolous," whereas the Code provision prohibited conduct that "would serve merely to harass or maliciously injure another." Second, Colo.RPC 3.1 states an objective test, whereas DR 7-102(A)(1) applied only if the lawyer "kn[ew] or it [was] obvious" that the litigation conduct was frivolous. Third, the Colorado Rule includes an exception that in a criminal or other case in which incarceration of the client might result, the lawyer may put the prosecution to its proof even if there is no nonfrivolous basis for defense. The prefatory language in the Colorado (but not Model) Rule is based on EC 7-1.

3.1:200   Non-Meritorious Assertions in Litigation

¥ Primary Colorado References: CO Rule 3.1
¥ Background References: ABA Model Rule 3.1, Other Jurisdictions
¥ Commentary: ABA/BNA ¤ 61:101, ALI-LGL ¤ 170, Wolfram ¤ 11.2

Colo.RPC 3.1 should be reviewed in connection with CRCP 11 (sanctions for filing frivolous pleadings); CRCP 37 (sanctions for failure to make disclosure or cooperate in discovery; CAR 38(d) (frivolous appeals) and CRS ¤¤ 13-17-101, et seq. (recovery of attorneysÕ fees for frivolous, groundless or vexatious litigation). These procedures, rules and statute, and many cases decided thereunder, are not considered herein.

While the Rule prohibits a lawyerÕs assertion of non-meritorious positions, a court may not require counsel to warrant the validity of a clientÕs claims. In In re Breaman, 949 P.2d 1348 (Colo. 1997), Breaman filed a pro se Crim. P. 35(c) motion requesting the district court to vacate his sentence. A year earlier, Breaman had entered into a plea agreement with the district attorney which he and his court appointed counsel had signed. Now, he alleged in his motion that he had a meritorious basis to retract his guilty plea. The district court appointed counsel to investigate BreamanÕs allegations and directed that, if meritorious, counsel should proceed on behalf of Breaman. The district court accepted counselÕs conclusion that the motion was meritless. On appeal, the Court of Appeals held that defense counsel Òshould not be placed in the position of warranting the validity of his clientÕs assertions.Ó People v. Breaman, 924 P.2d 1139, 1141 (Colo. App. 1996). The Court of Appeals relied on Comment 2 to Rule 3.1 to explain that Òa lawyer does not warrant the validity of any assertion made on the clientÕs behalf, so long as a reasonable, non-frivolous argument can be made in good faith in support of that assertion.Ó Id. Courts have an adjudicatory role and they will not be relieved of this role when counsel withdraws from a case because he considers the cause meritless. Id.

The Colorado Supreme Court affirmed the Court of AppealsÕ decision and clarified the nature of the district courtÕs error. In re Breaman, 949 P.2d at 1349. The Supreme Court explained that the district court did not err in instructing counsel to determine the merits of the motion, but in the manner in which it instructed the attorney. Id. at 1351. An attorney is appointed to represent the defendant and not to serve as the courtÕs fact finder. Id. ÒThe court may instruct the attorney that he or she is not required to pursue meritless claims. It is not proper, however, for the court to appoint an attorney solely for the purpose of investigating the merit of a defendantÕs claims.Ó Id.

There appears to be no Formal Opinion of the CBA Ethics Committee interpreting or applying Rule 3.1.

See also Section 3.1:300 and CBA Formal Op. 56, Settlement of Lawyer Malpractice, Withdrawal of Grievance Complaint (Mar. 22, 1980, addendum 1995 and 1998).

3.1:300   Judicial Sanctions for Abusive Litigation Practice (Especially Rule 11)

¥ Primary Colorado References: CO Rule 3.1
¥ Background References: ABA Model Rule 3.1, Other Jurisdictions
¥ Commentary: ABA/BNA ¤ 61:151, ALI-LGL ¤ 170, Wolfram ¤ 11.2
¥ CO Commentary: Fleishman, Civil and Grievance Liability for Non-Meritorious Claims and Contentions, 46 Trial Talk 12 (Nov. 1997)

The Colorado courts have adopted procedural rules and statutes that provide remedies for abusive litigation tactics. These procedural rules are similar to the pertinent federal rules. CRCP 11 (Signing of Pleadings) contains provisions concerning representations to the court similar to those in Federal Rule of Civil Procedure 11. In addition, CRCP 37 (Failure to Make Disclosure or Cooperate in Discovery; Sanctions) is almost identical to its federal counterpart. Finally, CAR 38(d), which deals with frivolous appeals, is identical to Federal Rule of Appellate Procedure 38(d).

In addition, CRS ¤¤13-17-101, et seq. provide for recovery of attorneysÕ fees for frivolous, groundless or vexatious litigation. The numerous decisions under this statute are not discussed, but implicitly involve Rule 3.1 violations. (For discussion see CJI-Civ.4th 5:6 (Notes on Use).)

An appeal should be considered frivolous for the purposes of CAR 38 Òif the proponent can present no rational argument based on the evidence or law in support of a proponentÕs claim or defense, or the appeal is prosecuted for the sole purpose of harassment or delay.Ó Mission Denver Co. v. Pierson, 674 P.2d 363, 365 (Colo. 1984). However, an unsuccessful appeal is not necessarily frivolous. Id. The standard for frivolousness should be directed at penalizing egregious conduct and not at deterring an attorney from vigorously asserting his clientÕs rights. Id.

In People v. Fitzgibbons, 909 P.2d 1098 (Colo. 1996), a hearing panel of the Supreme CourtÕs grievance committee determined that plaintiff had violated Colo.RPC 3.1 by bringing a frivolous claim. Id. at 1103. On appeal to the Supreme Court, the plaintiff challenged the hearing boardÕs decision by alleging that the board usurped the Supreme CourtÕs role when it made legal decisions. Id. at 1104. The Supreme Court held that where the hearing board based its legal decisions on conclusions of law made by the district court and the Court of Appeals, the board acted within the boundaries of its authority. Id.

3.1:400   Civil Liability for Abusive Litigation Practice [see 1.1:520]

¥ Primary Colorado References: CO Rule 3.1
¥ Background References: ABA Model Rule 3.1, Other Jurisdictions
¥ Commentary: ABA/BNA ¤ 61:101, ALI-LGL ¤¤ 77, 170, Wolfram ¤ 11.2
¥ CO Commentary: Fleishman, Civil and Grievance Liability for Non-Meritorious Claims and Contentions, 46 Trial Talk 12 (Nov. 1997)

There appear to be neither Colorado case law nor CBA Ethics Committee Formal Opinions concerning Rule 3.1 and civil liability.

Colorado recognizes the claim for relief for abuse of process. See CJI-Civ. 4th 17:10, and Notes on Use. Similarly, Colorado recognizes a claim for relief for malicious prosecution arising out of a criminal case, CJI-Civ.4th 17:1, and perhaps arising out of a civil suit. Id.

3.1:500   Complying with Law and Tribunal Rulings

¥ Primary Colorado References: CO Rule 3.1
¥ Background References: ABA Model Rule 3.1, Other Jurisdictions
¥ Commentary: ABA/BNA ¤ 16:1201, ALI-LGL ¤ 165, Wolfram ¤¤ 12.1.3, 13.3.7

In People v. Janiszewski, 901 P.2d 476 (Colo. 1995), the Supreme Court approved a conditional stipulation, agreement, and admission of misconduct in a disciplinary proceeding where the respondent had admitted violations to, inter alia, the predecessor to Rule 3.1. Id. at 476. The violation occurred when, during closing arguments in a paternity action, the respondent referred on several occasions to documents that had been ruled inadmissible. Id. The trial court stated that respondentÕs actions were Òa deliberate violation of the courtÕs order.Ó Id. at 477.

See also CRCP 37(b) (failure to comply with discovery order). Contempt powers of courts are not herein discussed.

3.2   Rule 3.2 Expediting Litigation

3.2:100   Comparative Analysis of Colorado Rule

¥ Primary Colorado References: CO Rule 3.2
¥ Background References: ABA Model Rule 3.2, Other Jurisdictions
¥ Commentary:

See also CRCP 11 (Attorney signing pleading constitutes a certificate that it is not interposed to cause unnecessary delay).

3.2:101      Model Rule Comparison

Colo.RPC. 3.2 and its Comment are identical to the Model Rule and its Comment.

3.2:102      Model Code Comparison

The lawyer's duty to make reasonable efforts to expedite litigation, stated in Colo.RPC. 3.2, draws on several Model Code provisions. DR 1-102(A)(5) stated that a lawyer "shall not engage in conduct that is prejudicial to the administration of justice." DR 7-101(A)(1) stated that a lawyer does not violate the duty to represent a client zealously "by being punctual in fulfilling all professional commitments." DR 7-102(A)(1) provided that a lawyer "shall not . . . delay a trial . . . when he knows or when it is obvious that such action would serve merely to harass or maliciously injure another."

3.2:200   Dilatory Tactics

¥ Primary Colorado References: CO Rule 3.2
¥ Background References: ABA Model Rule 3.2, Other Jurisdictions
¥ Commentary: ABA/BNA ¤ 61:201, ALI-LGL ¤ 166, Wolfram ¤ 11.2.5

Neither judicial decisions nor formal opinions have meaningfully explained the requirements of Colo.RPC. 3.2, or defined what constitutes dilatory tactics. For examples of application of the rule in disciplinary proceedings, see People v. Holmes, 921 P.2d 44 (Colo. 1996); People v. Chappell, 783 P.2d 838 (Colo. 1989).

3.2:300   Judicial Sanctions for Dilatory Tactics

¥ Primary Colorado References: CO Rule 3.2
¥ Background References: ABA Model Rule 3.2, Other Jurisdictions
¥ Commentary: ABA/BNA ¤ 61:201, ALI-LGL ¤ 166, Wolfram ¤ 11.2.5

There have been no reported decisions or formal opinions involving judicial enforcement or sanctions for dilatory tactics under Colo.RPC. 3.2, other than in the Rules of Procedure Regarding Attorney Discipline, CRCP Ch. 20. Judicial sanctions would normally occur in the proceeding in which the dilatory tactics occurred, pursuant to CRCP 11 (prohibiting, inter alia, pleadings Òinterposed for any improper purposes, such as . . . to cause unnecessary delay . . . .Ó).

3.3   Rule 3.3 Candor Toward the Tribunal

3.3:100   Comparative Analysis of Colorado Rule

¥ Primary Colorado References: CO Rule 3.3
¥ Background References: ABA Model Rule 3.3, Other Jurisdictions
¥ Commentary:

3.3:101      Model Rule Comparison

Colo.RPC 3.3 is identical to the Model Rule.

The Colorado Comment to Colo.RPC 3.3 differs in some respects from the Comment to the Model Rule. The Colorado Comment adds a short paragraph to the end of Comment [2] that lawyers never should condoneÒ[f]raudulent, deceptive, or otherwise illegal conduct by a participant in a proceeding.Ó Colorado Comment [3] adds a statement that "[t]he complexity of law often makes it difficult for a tribunal to be fully informed unless the pertinent law is presented by the lawyers in the cause," and that a fully-informed tribunal will be better able to make a fair and accurate determination of the matter before it. This paragraph also states that a lawyer is expected to argue the existing law in a light most favorable to his or her client, and that a lawyer may argue any permissible construction of the law regardless of the lawyerÕs opinion on whether that construction of the law will ultimately prevail. The Colorado Comment deletes the last sentence of Model Rule Comment [3], substituting the statement that having made a required disclosure of directly adverse authority in the controlling jurisdiction, "the lawyer may challenge its soundness in whole or part.Ó

The Colorado Comment adds an introductory sentence under the heading ÒFalse Evidence,Ó prior to the text of Comment [4], which states that a lawyer should present any admissible evidence the client desires to have presented unless the lawyer knows, or should know, that the evidence is false, fraudulent or perjured.

Under the heading ÒRemedial Measures,Ó Colorado Comment [11] makes significant changes from the Model Rule Comment. First, while the Model Rule Comment advises a lawyer to advise the court of a client's perjury or other false evidence as a last resort (if the client will not correct the false evidence and if withdrawal will not remedy the situation or is impossible), the Colorado Comment instead advises the lawyer to "take reasonable remedial measuresÓ in that situation. The Colorado Comment omits the remainder of the text of Model Rule Comment [11], which discusses the potential ramifications of disclosure to the court.

The Colorado Committee Comment has no counterpart in the Model Rule Comment. It notes that the provisions of Colo.RPC 3.3 regarding revealing client perjury strikes the proper balance among the lawyerÕs duty to protect client confidences, the lawyerÕs obligation to the court, and the lawyerÕs general duty not to assist in the commission of a crime.

3.3:102      Model Code Comparison

[The discussion of this topic has not yet been written.]

3.3:200   False Statements to a Tribunal

¥ Primary Colorado References: CO Rule 3.3(a)(1) & (2)
¥ Background References: ABA Model Rule 3.3(a)(1) & (2), Other Jurisdictions
¥ Commentary: ABA/BNA ¤ 61:301, ALI-LGL ¤ 180, Wolfram ¤ 12.5

[The discussion of this topic has not yet been written.]

3.3:300   Disclosure to Avoid Assisting Client Crime or Fraud

¥ Primary Colorado References: CO Rule 3.3(a)(2)
¥ Background References: ABA Model Rule 3.3(a)(2), Other Jurisdictions
¥ Commentary: ABA/BNA ¤ 61:301, ALI-LGL ¤ 180, Wolfram ¤

[The discussion of this topic has not yet been written.]

3.3:310      Prohibition on Counseling or Assisting Fraud on a Tribunal [see also 1.6:350]

[The discussion of this topic has not yet been written.]

3.3:400   Disclosing Adverse Legal Authority

¥ Primary Colorado References: CO Rule 3.3(a)(3)
¥ Background References: ABA Model Rule 3.3(a)(3), Other Jurisdictions
¥ Commentary: ABA/BNA ¤ 4:301, ALI-LGL ¤ 171, Wolfram ¤ 12.8

[The discussion of this topic has not yet been written.]

3.3:500   Offering False Evidence

¥ Primary Colorado References: CO Rule 3.3(a)(4)
¥ Background References: ABA Model Rule 3.3(a)(4), Other Jurisdictions
¥ Commentary: ABA/BNA ¤ 61:301, ALI-LGL ¤¤ 175-180, Wolfram ¤¤ 12.3, 12.43, 12.5

[The discussion of this topic has not yet been written.]

3.3:510      False Evidence in Civil Proceedings

[The discussion of this topic has not yet been written.]

3.3:520      False Evidence in Criminal Proceedings

[The discussion of this topic has not yet been written.]

3.3:530      Offering a Witness an Improper Inducement

[The discussion of this topic has not yet been written.]

3.3:540      Interviewing and Preparing Witnesses

[The discussion of this topic has not yet been written.]

3.3:600   Remedial Measures Necessary to Correct False Evidence

¥ Primary Colorado References: CO Rule 3.3(a)(4)
¥ Background References: ABA Model Rule 3.3(a)(4), Other Jurisdictions
¥ Commentary: ABA/BNA ¤ 61:401 et seq., ALI-LGL ¤ 117A-B, Wolfram ¤¤ 12.5, 12.6, 13.3.6

[The discussion of this topic has not yet been written.]

3.3:610      Duty to Reveal Fraud to the Tribunal

[The discussion of this topic has not yet been written.]

3.3:700   Discretion to Withhold Evidence Believed to Be False

¥ Primary Colorado References: CO Rule 3.3(c)
¥ Background References: ABA Model Rule 3.3(c), Other Jurisdictions
¥ Commentary: ABA/BNA ¤ 61:301, ALI-LGL ¤ 180, Wolfram ¤ 12.5

[The discussion of this topic has not yet been written.]

3.3:800   Duty of Disclosure in Ex Parte Proceedings

¥ Primary Colorado References: CO Rule 3.3(d)
¥ Background References: ABA Model Rule 3.3(d), Other Jurisdictions
¥ Commentary: ABA/BNA ¤ 61:301, ALI-LGL ¤ 172 , Wolfram ¤ 12.7

[The discussion of this topic has not yet been written.]

3.4   Rule 3.4 Fairness to Opposing Party and Counsel

3.4:100   Comparative Analysis of Colorado Rule

¥ Primary Colorado References: CO Rule 3.4
¥ Background References: ABA Model Rule 3.4, Other Jurisdictions
¥ Commentary:

3.4:101      Model Rule Comparison

Colo.RPC 3.4 is identical to the Model Rule.

The Comment to Colo.RPC 3.4 is identical to the Comment to the Model Rule with one exception. Colorado Comment [3], regarding compensation of witnesses, includes an additional paragraph that states the limits of a lawyer's expression of his or her personal opinion as to the justness of a cause, the credibility of a witness, the culpability of a civil litigant, or the guilt or innocence of an accused.

3.4:102      Model Code Comparison

[The discussion of this topic has not yet been written.]

3.4:103      Overview

[The discussion of this topic has not yet been written.]

3.4:200   Unlawful Destruction and Concealment of Evidence

¥ Primary Colorado References: CO Rule 3.4(a)
¥ Background References: ABA Model Rule 3.4(a), Other Jurisdictions
¥ Commentary: ABA/BNA ¤ 61:701, ALI-LGL ¤¤ 178, 179, Wolfram ¤ 12.3, 12.4

[The discussion of this topic has not yet been written.]

3.4:210      Physical Evidence of Client Crime

[The discussion of this topic has not yet been written.]

3.4:300   Falsifying Evidence

¥ Primary Colorado References: CO Rule 3.4(b)
¥ Background References: ABA Model Rule 3.4(b), Other Jurisdictions
¥ Commentary: ABA/BNA ¤¤ 61:601, 61:701, ALI-LGL ¤ 178, Wolfram ¤ 12.3

[The discussion of this topic has not yet been written.]

3.4:310      Prohibited Inducements

[The discussion of this topic has not yet been written.]

3.4:400   Knowing Disobedience to Rules of Tribunal

¥ Primary Colorado References: CO Rule 3.4(c)
¥ Background References: ABA Model Rule 3.4(c), Other Jurisdictions
¥ Commentary: ABA/BNA ¤ 61:1231, ALI-LGL ¤ 165, Wolfram ¤ 12.1

[The discussion of this topic has not yet been written.]

3.4:500   Fairness in Pretrial Practice

¥ Primary Colorado References: CO Rule 3.4(d)
¥ Background References: ABA Model Rule 3.4(d), Other Jurisdictions
¥ Commentary: ABA/BNA ¤ 61:701, ALI-LGL ¤ 166, Wolfram ¤ 12.4

[The discussion of this topic has not yet been written.]

3.4:600   Improper Trial Tactics

¥ Primary Colorado References: CO Rule 3.4(e)
¥ Background References: ABA Model Rule 3.4(e), Other Jurisdictions
¥ Commentary: ABA/BNA ¤ 61:1361, ALI-LGL ¤ 167, Wolfram ¤ 12.1

[The discussion of this topic has not yet been written.]

3.4:700   Advising Witness Not to Speak to Opposing Parties

¥ Primary Colorado References: CO Rule 3.4(f)
¥ Background References: ABA Model Rule 3.4(f), Other Jurisdictions
¥ Commentary: ALI-LGL ¤ 176, Wolfram ¤ 12.4.2

[The discussion of this topic has not yet been written.]

3.5   Rule 3.5 Impartiality and Decorum of the Tribunal

3.5:100   Comparative Analysis of Colorado Rule

¥ Primary Colorado References: CO Rule 3.5
¥ Background References: ABA Model Rule 3.5, Other Jurisdictions
¥ Commentary:

3.5:101      Model Rule Comparison

Colo.RPC 3.5 and its Comment are identical to the Model Rule and its Comment.

The Committee Comment to Colo.RPC 3.5 explains that this provision was not controversial because it simply makes unethical what is already illegal, and is similar to existing Code provisions.

3.5:102      Model Code Comparison

Colo.RPC 3.5 incorporates concepts that were previously contained in several sections of the Model Code. The general prohibition on influencing jurors and ex parte communications with jurors contained in Colo.RPC 3.5(a) and (b) was formerly contained in DR 7-108, which dealt with all communication with or investigation of jurors. The prohibition on ex parte communications with judges was formerly contained in DR 7-110(A) which prohibited any gifts to a judge of Òanything of value,Ó and DR 7-110(B), which prohibited ex parte communications with a judge Òas to the merits of the cause. . . . Ó Colo.RPC 3.5 is not limited to communications on the merits only, and prohibits all ex parte communications Òby means prohibited by law.Ó

The prohibition in Colo.RPC 3.5(c) against engaging in conduct Òintended to disrupt a tribunalÓ was reflected in former DR 7-106(C)(6), which prohibited Òundignified or discourteous conduct which is degrading to a tribunal.Ó The Colorado Committee Comment notes that the standard in Colo.RPC 3.5(c) is more specific than DR 7-106(C)(6).

Finally, the prohibition on disruptive conduct was also reflected in DR 7-101(A)(1) which provided that a lawyer can represent his client zealously while at the same time Òavoiding offensive tactics.Ó

3.5:200   Improperly Influencing a Judge, Juror, or Other Court Official

¥ Primary Colorado References: CO Rule 3.5(a)
¥ Background References: ABA Model Rule 3.5(a), Other Jurisdictions
¥ Commentary: ABA/BNA ¤ 61:801, 101:702, ALI-LGL ¤¤ 173, 175, Wolfram ¤¤ 11.3, 11.4

[The discussion of this topic has not yet been written.]

3.5:210      Improperly Influencing a Judge

In People v. Holmes, 921 P.2d 44 (Colo. 1996), an attorney was suspended for one year and one day for, among other things, violating Colo.RPC 3.5(a) and (b). The lawyer wrote a letter to a county court judge regarding a small claims collection matter, stating that the lawyer would not enter an appearance in the case due to a conflict, but requesting the judgeÕs rationale for entering a default judgment. Although the opinion does not provide any additional details of the letter, the Supreme Court in the disciplinary action found that the letter constituted a prohibited ex parte contact as well as an attempt to influence the Court.

It is not necessary that the lawyer actually attempt to influence the judge, so long as the lawyer instigated such acts. In People v. Hertz, 638 P.2d 794 (Colo. 1982), a lawyer urged a principal witness against him in a grievance proceeding to write a letter on his behalf to the Chief Justice of the Supreme Court supporting the lawyer and substantially recanting his prior testimony in the grievance proceeding. The lawyer was publicly censured for causing the witness to communicate ex parte with a Judge and attempting to influence the Court. This case demonstrates that the ex parte communication and undue influence can be undertaken by someone else other than the lawyer if done at the lawyerÕs direction or request. Although this case was decided under DR 7-110(B), the same conduct undoubtedly would be a violation of Colo.RPC 3.5. Moreover, the Court found that the conduct was particularly serious because it involved improper conduct in the context of a grievance proceeding, during which the Court believes that a lawyer should be more acutely aware of his ethical obligations.

3.5:220      Improperly Influencing a Juror

The Colorado Bar Association addressed contacts with jurors and potential jurors in a detailed opinion issued in 1985 under the former Code. See CBA Formal Op. 70 (September 22, 1985, amended 1995). The focus of the opinion was that in most circumstances, a lawyer who has participated in a trial should not tell a juror after the trial about information that was not presented in evidence at the trial. The opinion notes that one reason a lawyer might disclose such information to a juror may be to influence the actions of the juror in future jury service. Such conduct is specifically prohibited by Colo.RPC 3.5(a) which prohibits any influence on prospective jurors. Moreover, any conduct which unduly influences jurors or prospective jurors may also be prohibited by Rule 3.5(c) which prohibits any conduct intended to disrupt the tribunal.

In People v. Radinsky, 490 P.2d 951 (Colo. 1971), an attorney was indefinitely suspended from the practice of law in Colorado for, among other things, tampering with a juror. The attorneyÕs investigator telephoned members of the jury panel in a personal injury case to ascertain their attitudes about important issues in the case and recorded those conversations. Although the case was decided under former Canon 23, such conduct is proscribed by Colo.RPC 3.5(a) and (b).

3.5:300   Improper Ex Parte Communication

¥ Primary Colorado References: CO Rule 3.5(b)
¥ Background References: ABA Model Rule 3.5(b), Other Jurisdictions
¥ Commentary: ABA/BNA ¤ 61:801, 61:903, ALI-LGL ¤ 172, Wolfram ¤ 11.3.3

Much of the conduct that could constitute improperly influencing a judge or a juror, discussed in sections 3.5:210 and 3.5:220 above, also constitutes improper ex parte communications. For example, in People v. Holmes, 921 P.2d 44 (Colo. 1996), a letter written to a county court judge requesting information about the judgeÕs basis for entering a default judgment was considered to be an impermissible ex parte communication as well as an attempt to influence the judge. See also People v. Hertz, 638 P.2d 794 (Colo. 1982)(requesting a witness to intervene in a disciplinary proceeding by writing a letter to the Supreme Court on the lawyerÕs behalf was both an impermissible ex parte communication and an attempt to influence the proceeding under DR 7-110(B)).

A lawyer should avoid ex parte communications even on procedural matters, and even if the judge welcomes the communication. In People v. Vigil, 779 P.2d 372 (Colo. 1989), an attorney initiated an ex parte contact in which he obtained an order from the judge setting aside a default judgment, because the underlying documentation was not properly served on the lawyerÕs client. The lawyer was only publicly censured in this case because the court found as mitigating factors the fact that the lawyer was not dishonest during the communication, and that the communication with the Court concerned a matter of procedure rather than the merits. However, the lawyer was still sanctioned in spite of the fact that the judge stated that the Court Òis always in a position to grant immediate relief, ex parte or not . . . .Ó

3.5:400   Intentional Disruption of a Tribunal

¥ Primary Colorado References: CO Rule 3.5(c)
¥ Background References: ABA Model Rule 3.5(c), Other Jurisdictions
¥ Commentary: ABA/BNA ¤ 61:901, ALI-LGL ¤ 165, Wolfram ¤ 12.1.3

There are few Colorado authorities addressing what conduct might constitute Òdisruption of a tribunal.Ó Generally, such conduct is thought of as outbursts or other rude behavior by a lawyer in a courtroom. The Comment makes it clear that it is intended to apply generally to Òabusive or obstreperous conductÓ or Òtheatrics.Ó However, arguably all manner of behavior could be found to disrupt a tribunal. For example, in a formal ethics opinion addressing contact with jurors after a verdict has been rendered, where such conduct could influence the actions of the jurors in future jury service, a lawyer should at least potentially consider the implications of that conduct under Colo.RPC 3.5(c). See CBA Formal Op. 70 (Sept. 22, 1985, amended 1995).

The court opinions that have discussed this issue apply to more traditional types of disruptive behavior. In People v. Cohan, 913 P.2d 523 (Colo. 1996), a Colorado attorney appearing pro hac vice in a trial in Washington had a series of verbal interactions with the presiding trial judge. This conduct was held to be undignified and discourteous under DR 7-106(C)(6). The lawyer was publicly censured for this conduct. See further discussion of this case under Section 8.5:200, below.

In People v. Harfmann, 638 P.2d 745 (Colo. 1981), an attorney was disbarred for, among other things, making Òscurrilous, critical and insulting chastisementsÓ of a trial judge and asserting that the judge was incompetent. This conduct was found to be ÒdegradingÓ under DR 7-106(C)(6).

Although conduct that is so egregious as to violate this rule may also rise to the level of contempt, it is not necessary for the conduct to rise to the level of contempt to be found to be a violation of a lawyerÕs ethical obligations. See Losavio v. District Court, 512 P.2d 266 (Colo. 1973)(court dismissed contempt judgment against attorney who accused a judge of being in a criminal defendantÕs Òcorner,Ó but noted the potential violation of DR 7-106(C)(6)).

3.6   Rule 3.6 Trial Publicity

3.6:100   Comparative Analysis of Colorado Rule

¥ Primary Colorado References: CO Rule 3.6
¥ Background References: ABA Model Rule 3.6, Other Jurisdictions
¥ Commentary:

3.6:101      Model Rule Comparison

The current version of Colo.RPC 3.6 and its Comment is identical to MR 3.6 and its Comment.

3.6:102      Model Code Comparison

Colo.RPC 3.6 is very similar to the provisions of DR 7-107 and EC 7-33. A reasonably detailed comparison of Colo.RPC 3.6 and DR 7-107 is contained at the end of the comment to Colo.RPC 3.6. The most significant change between the former Code and the Rule is that the Code prohibited any statement that might be disseminated to the public, unless that statement fell within certain defined exceptions. Colo.RPC 3.6 and the Model Rule only prohibit statements that a reasonable person would expect to have a Òsubstantial likelihood of materially prejudicingÓ a matter. This standard arguably gives lawyers more leeway to make public statements about current matters without violating the Rule.

Colo.RPC 3.6(c) and the Model Rule add a provision that was not reflected in the Code: that a lawyer may make a limited public statement that might otherwise violate the Rule if it is necessary to mitigate adverse publicity against that lawyerÕs client, so long as the lawyer or the client were not the source of the adverse publicity.

3.6:200   Improper Extrajudicial Statements

¥ Primary Colorado References: CO Rule 3.6(a)
¥ Background References: ABA Model Rule 3.6(a), Other Jurisdictions
¥ Commentary: ABA/BNA ¤ 61:1001, ALI-LGL ¤ 169, Wolfram ¤ 12.2

Neither a Colorado court nor the Colorado Bar Association has commented on the permissible scope of trial publicity since the adoption of Colo.RPC 3.6. As noted in the Model Code comparison at Section 3.6:102 above, the most significant change between the former Code and the Rule is the addition of the standard that only statements that substantially or materially prejudice a proceeding are prohibited. There are no authorities to date providing guidance on what types of statements cross that line other than the examples provided in the Comment.

In CBA Formal Op. 83 (Nov. 18, 1983, amended July 24, 1993), the CBA Ethics Committee broadly considered the issues of lawyer advertising, solicitation and publicity under the former Code. Although trial publicity was beyond the scope of the opinion, the opinion briefly addressed whether a lawyer should make a copy of a complaint or indictment available to the news media. The opinion suggested Òas a general guidelineÓ that a lawyer should not provide a complaint or indictment to the media unless specifically requested to do so.

The Colorado Supreme Court has only twice addressed trial publicity under DR 7-107, and then only briefly and indirectly. In People v. Mulligan, 568 P.2d 449 (Colo. 1977), a criminal defendant sought a continuance because of a radio broadcast in which the District Attorney and one of his deputies suggested a connection between the defendant and organized crime. The Supreme Court found that the denial of the continuance was not reversible error, but citing DR 7-107, the Court stated that, ÒWe certainly do not condone the participation of the District Attorney and its deputy in an ill-timed radio interview.Ó Similarly, in Sergent v. People, 497 P.2d 983 (Colo. 1972), a murder defendant had sought a change of venue based on prejudicial pretrial publicity. Among the various types of publicity, including interviews by the defendant himself, were news releases given by both defense counsel and the District Attorney. Although no details are provided in the opinion, the Court characterized the news release by the District Attorney as Òcontrary to good practice.Ó The Court ultimately concluded that the publicity was not so extensive as to have denied the defendant a fair trial, but citing DR 7-107, stated that, ÒThe news releases which stemmed from the action and words of prosecution and defense counsel are not to be lightly condoned.Ó

It is unknown whether the conduct in either case discussed above would be a violation of Colo.RPC 3.6. As noted above, under DR 7-107, any statement was improper if not specifically allowed by the Rule. These particular statements may or may not have substantially or materially prejudiced the proceeding sufficient to constitute a violation of Colo.RPC 3.6.

3.6:300   Permissible Statements

¥ Primary Colorado References: CO Rule 3.6(b)
¥ Background References: ABA Model Rule 3.6(b), Other Jurisdictions
¥ Commentary: ABA/BNA ¤ 69:1001, ALI-LGL ¤ 169, Wolfram ¤ 12.2

No Colorado authority has discussed what statements are permissible under Colo.RPC 3.6.

3.6:400   Responding to Adverse Publicity

¥ Primary Colorado References: CO Rule 3.6(c)
¥ Background References: ABA Model Rule 3.6(c), Other Jurisdictions
¥ Commentary: ABA/BNA ¤ 61:100l, ALI-LGL ¤ 169, Wolfram ¤ 12.2

The provision in Colo.RPC 3.6(c) permitting a lawyer to make public statements to mitigate or respond to adverse publicity from another source did not exist in DR 7-107 or in the version of Colo.RPC 3.6 that existed prior to January 1, 1998. No Colorado court or other Colorado authority has discussed the scope of this provision since its adoption.

3.7   Rule 3.7 Lawyer as Witness

3.7:100   Comparative Analysis of Colorado Rule

¥ Primary Colorado References: CO Rule 3.7
¥ Background References: ABA Model Rule 3.7, Other Jurisdictions
¥ Commentary:

3.7:101      Model Rule Comparison

Colo.RPC 3.7 was compared to MR 3.7 in CBA Formal Op. 78 (June 18, 1988, revised June 18, 1994 and May 10, 1997). The following is quoted from that opinion:

ÒCourts have long recognized the prejudice created by disqualification of an advocate, and the potential for abuse if an attorney may be disqualified simply by being listed or subpoenaed by an opposing party. Colo.RPC 3.7 follows the trend of the ABAÕs Model Rules of Professional Conduct (ÔModel RulesÕ) in relaxing the prohibitions contained in the prior Code, with two important differences.

ÒFirst, Colo.RPC 3.7(b) reverses a key presumption, and apparently the burden of proof, of Model Rule 3.7(b). Model Rule 3.7(b) provides:

A lawyer may act as an advocate in a trial in which another lawyer in the lawyerÕs firm is likely to be called as a witness unless the requirements of Rule 1.7 or 1.9 have been met. (Emphasis added.)

ÒColo.RPC 3.7(b), on the other hand, provides:

A lawyer shall not act as an advocate in a trial in which another lawyer in the lawyerÕs firm is likely to be called as a witness unless the requirements of Rule 1.7 or 1.9 have been met. (Emphasis added.)

ÒThe Colorado Committee Comments to Colo.RPC 3.7(b) reinforce the deliberate attempt to Òchange [ ] the emphasis in (b) considerably . . . .

ÒSecond, in analyzing whether an advocate is barred from simultaneously acting as a witness under the general conflict of interest rule expressed in Rule 1.7, the Colorado Rules elevate a comment to the Model Rules to the status of a rule:

For the purpose of this Rule, a clientÕs consent cannot be validly obtained in those instances in which a disinterested lawyer would conclude that the client should not agree to the representation under the circumstances of the particular situation.

ÒColo.RPC 1.7(c). In analyzing advocate/witness problems, it is important for Colorado attorneys to be mindful of these two subtle, significant differences between the Colorado Rules and the Model Rules.Ó

3.7:102      Model Code Comparison

[The discussion of this topic has not yet been written.]

3.7:200   Prohibition of Advocate as Witness

¥ Primary Colorado References: CO Rule 3.7(a)
¥ Background References: ABA Model Rule 3.7(a), Other Jurisdictions
¥ Commentary: ABA/BNA ¤ 61:501, ALI-LGL ¤ 168, Wolfram ¤ 7.5

In Taylor v. Grogan, 900 P.2d 60 (Colo. 1995), the Supreme Court applied DR 5-102(B), which provided:

If . . . a lawyer learns . . . that he or a lawyer in his firm may be called as a witness other than on behalf of his client, he may continue the representation until it is apparent that his testimony is or may be prejudicial to the client.

The trial court had bifurcated the issue of whether the plaintiffÕs claim was barred by the statute of limitations. The defendantÕs lawyer deposed and then called the plaintiffÕs attorneys as witnesses on the issue of when the statute of limitations began to run. The Court of Appeals agreed with the trial court that the plaintiffÕs attorneys could testify as defense witnesses at trial, but held that because the trial court failed to disqualify plaintiffsÕ counsel after they did not withdraw, the trial was fundamentally unfair to the plaintiff and remanded for a new trial.

The Supreme Court reversed the remand for new trial. The court noted that the then applicable Code of Professional Responsibility by its terms was designed to provide ethical guidance to attorneys. The relevant section made no provision for disqualification of attorneys.

[T]he mere violation of a disciplinary rule does not automatically result in disqualification. The critical question is whether the litigation can be conducted in fairness to all parties. Disqualification should not be imposed unless the claimed conduct in some way ÔtaintsÕ the trial or legal system.

The Court cited Federal Deposit Insurance Co. v. Isham, 782 F.Supp. 524, 528 (D. Colo. 1992), discussed in Section 3.7:300. The court noted that plaintiffÕs counsel were responsible for the position in which they placed themselves and could not now avoid the consequences of their action by obtaining a new trial.

Because the Court of Appeals had ordered a new trial, the Supreme Court examined under Colo.RPC 3.7, which had been adopted subsequent to the trial, what would occur if the plaintiffÕs attorneys were again called as witnesses by the defense. The Court of Appeals had followed Williams v. District Court, 700 P.2d 549, 555 (Colo. 1985) which dictated that a trial court treat the act of subpoenaing counsel as the functional equivalent of a motion to disqualify. In Williams, the Supreme Court had said that if an attorney remains as counsel after having been named as an adverse witness to his or her client, the trial court must conduct a hearing and make appropriate findings as to whether any disqualification is required or whether any exception to the disciplinary rules would occur. The Court of Appeals had further stated that the procedure must be followed even when the subpoenaed attorney adverse witnesses have not moved to withdraw as counsel and the opposing party has not moved for an order of qualification.

The Supreme Court disagreed, first noting that the Colorado Court of AppealsÕ discussion of 3.7 was dicta. The Supreme Court continued, essentially overruling the Williams case, saying that neither the now applicable Rule 3.7 nor the accompanying Committee Comment mandates a hearing by the trial court to ascertain whether disqualification is necessary when there is a possibility of a conflict on the part of an attorney called as a witness. Given the dramatic differences between Colo.RPC 3.7 and the former DR 5-102(B), the overruling of Williams is not surprising.

In the Interest of J.E.B., J.O.B., and C.B., Children, and Concerning S.B., 854 P.2d 1372 (Colo. 1993), the Colorado Supreme Court held that the guardian ad litemÕs recommendations, if based upon evidence received by the court from other sources, are equivalent to arguments made by counsel as to how the evidence should be viewed by the trier of fact. Such opinions and recommendations should not be accepted as trial testimony.

In Religious Technology Center v. F.A.C.T.Net, Inc., 945 F.Supp. 1470 (D. Colo. 1996), a church sued a corporation for copyright infringement and trade secret misappropriation for posting church materials on the Internet. The defendantÕs attorneyÕs alleged knowledge of the source of the churchÕs materials that were allegedly posted on the Internet without the churchÕs authorization did not make the attorney a material witness, and did not disqualify him from representing the defendant corporation. The information allegedly known by the attorney was already widely known outside the church from multiple sources. The attorneyÕs testimony regarding the documents source would have been duplicative, and disqualifying the attorney would work substantial hardship on the defendant. The court stated that the party seeking disqualification of an attorney as likely to be a necessary witness must show that the advocateÕs testimony is necessary and not merely cumulative. The Court cited CBA Formal Op. 78: Disqualification of Advocate/Witness (June 18, 1988, revised June 18, 1994 and May 10, 1997). The last revision of this Opinion occurred after this decision.

In World Youth Day, Inc. v. Famous Artists Merchandising Exchange, Inc., 866 F.Supp. 1297 (D. Colo. 1994), plaintiff World Youth Day sued defendant for breach of contract, and sought to disqualify the attorney for the defendant merchandiser, who participated in negotiations between the parties. The federal court, noting that the District of Colorado had adopted the Colorado Rules of Professional Conduct, stated that under ,Colo.RPC 3.7 an attorney is a ÒnecessaryÓ witness if his or her testimony is relevant, material and unobtainable elsewhere. 866 F.Supp at 1302.

Here, the attorney was the only individual on defendantÕs side with first-hand, non-privileged information about the negotiations in which he was involved, was the sole participant for defendant in many lengthy telephone negotiations, was the primary contact for defendant in all contract issues, made promises that defendant would begin to make royalty payments, later communicated that the defendant terminated the letter of intent between the parties, and acknowledged that he represented the defendant through most of its dealings with the plaintiff and had intimate familiarity with the minutia of the case. The plaintiffÕs counsel had promptly informed attorney that he would be a necessary fact witness.

The court noted that mere violations of the disciplinary rules do not automatically result in disqualification. The crucial inquiry is whether litigation can be conducted in fairness to both parties. Disqualification of an attorney for violation of a disciplinary rule should not be imposed unless the claimed misconduct in some way taints the trial or legal system.

The attorney was also disqualified from taking any depositions in the case, in spite of the general rule that an attorney disqualified as a trial advocate may represent the client in pretrial activities. Here, the depositions would be used to obtain evidence that would, if admitted at trial, reveal the attorneyÕs dual role as advocate and witness, and the attorney himself would most likely be deposed.

CBA Formal Op. 78, Disqualification of the Advocate/Witness (June 18, 1988, revised June 18, 1994 and May 10, 1997) is intended to provide guidance in situations where an advocate may also be called as a witness, including ethical limitations and consideration of subpoenaing, listing or identifying another partyÕs attorney as a witness or potential witness. The Opinion specifically states that it does not purport to be a legal opinion as to the circumstances under which a motion to disqualify should be filed, granted or denied.

The Ethics Committee concludes:

a.   Subject to certain enumerated limited exceptions, an attorney may neither accept nor continue employment as an advocate if the lawyer is likely to be a necessary witness in the case, or if another lawyer in the firm is likely to be called as a witness unless the requirements Colo.RPC 1.7 and 1.9 (Conflicts of Interest) have been met.

b.   An advocate is not per se ethically disqualified from representing a client at litigation arising from a business matter or other transaction in which the advocate, or another lawyer in the advocateÕs firm, previously acted as counsel, or in litigation involving facts developed by the advocateÕs investigation. However, counsel must be cognizant of the possible basis for disqualification inherent in such situations and should decline employment or withdraw from representation if the standards discussed herein are violated.

c.   In the zealous representation of the clientÕs cause, a lawyer may be required to obtain discovery from, or call as a witness at trial, an attorney in a law firm representing another party. Again, there is no ethical standard that automatically prohibits a lawyer from taking such action. However, subpoenaing, identifying or calling an opponent partyÕs attorney, or non-advocate attorney in an opponentÕs law firm, must not be done routinely or lightly. Doing so (whether or not combined with a motion to disqualify) solely as a connivance to disqualify opposing counsel may constitute a violation of the Colorado Rules.

The Opinion discusses the scope of the prohibition limited to advocacy at trial as distinguished from pre-trial stages of litigation and to appellate work. The Opinion also discusses enumerated exceptions and vicarious disqualification as well as the propriety of identifying or listing another partyÕs attorney as a witness or moving for disqualification.

3.7:300   An Affiliated Lawyer as Advocate (Imputed Disqualification)

¥ Primary Colorado References: CO Rule 3.7(b)
¥ Background References: ABA Model Rule 3.7(b), Other Jurisdictions
¥ Commentary: ABA/BNA ¤ 61:501, ALI-LGL ¤ 168, Wolfram ¤ 7.5, 7.6

In Greenebaum-Mountain Mortgage Company v. Pioneer National Title Insurance Company v. Duane Investments, Inc., 421 F.ÊSupp. 1348 (D. Colo. 1976), the defendant moved in civil litigation for the disqualification of plaintiffÕs attorney and all members of his firm. PlaintiffÕs attorney was the main figure involved in drafting and negotiating the documents in dispute. The district court held that upon consideration of all factors involved, even though plaintiffÕs attorney of long-standing would be called as a material witness in the case because of his participation in the negotiations involved in the litigation, fairness to all parties did not require that all members of his firm be disqualified from conducting the litigation. The court stated that the crucial question in this situation was not whether the lawyer who has some relation to prosecution of trial may appear as a witness in that trial, but whether litigation can be conducted in fairness to all parties represented, if the attorney testifies. Here, the court was satisfied that the firm could appropriately and fairly represent the defendant. Under these facts the court concluded sanctions are not appropriate, especially the sanction of disqualification of the law firm, unless claimed misconduct in some manner taints the underlying trial or legal system.

In Federal Deposit Insurance Corp. v. Sierra Resources, Inc., 682 F.ÊSupp. 1167 (D. Colo. 1987), plaintiff moved to disqualify the attorney for the defendant. The defendantÕs attorney was from a three person law firm. Prior to the lawsuit, one partner of the law firm, Mr. Hart, opined as to transferability of the securities transaction at dispute in the case. Hart was to be called as both a material witness and expert witness for the defense at trial. Both parties agreed that HartÕs credibility was of great importance in establishing defendantÕs good faith defense to the action. The court granted the plaintiffÕs motion to disqualify because it believed that the jury would be confused and grant too much or too little weight to HartÕs testimony. The court stated that the jury likely would be unable to adequately distinguish among HartÕs multiple roles, including those of (1)Êan expert on the legality of stock transfers; (2)Êthe critical fact witness on the issue of the clientÕs good faith and fair dealing; (3)Êan attorney responsible for upholding the standards of ethical conduct and (4)Êa named partner in the law firm representing the defendant.

The defendant argued that the substantial hardship exception to disqualification (which provides that a lawyer may continue his employment Òif refusal would work a substantial hardship on the client because of the distinctive value of the lawyer or his firm as counsel in the particular case.Ó) applied in this case. The Court rejected this argument, stating that payment of fees alone does not qualify under the substantial hardship exception.

3.8   Rule 3.8 Special Responsibilities of a Prosecutor

3.8:100   Comparative Analysis of Colorado Rule

¥ Primary Colorado References: CO Rule 3.8
¥ Background References: ABA Model Rule 3.8, Other Jurisdictions
¥ Commentary:

This discussion is current through September 30, 2000.

3.8:101      Model Rule Comparison

The current version of Colo.RPC 3.8 and its Comment parallels MR 3.8(a-f) and its Comment. However, Colo.RPC 3.8 does not include a provision similar to MR 3.8(g). MR 3.8(g) provides that the prosecutor shall Òrefrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused.Ó MR 3.8(g). Colo.RPC 3.6, which parallels MR 3.6, contains similar prohibitions applying to all attorneys, not just prosecutors.

3.8:102      Model Code Comparison

DR 7-103(A) provided that a Òpublic prosecutor . . . shall not institute . . . criminal charges when he knows or it is obvious that the charges are not supported by probable cause.Ó DR 7-103(B) provided that Ò[a] public prosecutor . . . shall make timely disclosure . . . of the existence of evidence, known to the prosecutor . . . that tends to negate the guilt of the accused, mitigate the degree of the offense, or reduce the punishment.Ó

The Colorado Bar Association issued an informal opinion regarding a prosecutorÕs duty, under DR 7-103, to disclose to the defense not only the existence of evidence known to him which supports the innocence of the defendant, but also if any evidence has been lost or destroyed. CBA Informal Op. P, Prosecutors; Plea Bargaining (May 19, 1973).

3.8:200   The Decision to Charge

¥ Primary Colorado References: CO Rule 3.8(a)
¥ Background References: ABA Model Rule 3.8(a), Other Jurisdictions
¥ Commentary: ABA/BNA ¤ 61:601, ALI-LGL ¤ 156, Wolfram ¤ 13.10

Colo.RPC 3.8(a) provides that a prosecutor shall refrain from prosecuting a charge that is not supported by probable cause. While no Colorado cases address this rule, it is the same as MR 3.8(a). See generally, CBA Formal Op. 62, Duties of Public Prosecutor, Release of DefendantÕs Civil Claims (adopted November 20, 1982, revised November 19, 1988, addendum 1995).

3.8:300   Efforts to Assure Accused's Right to Counsel

¥ Primary Colorado References: CO Rule 3.8(b)
¥ Background References: ABA Model Rule 3.8(b), Other Jurisdictions
¥ Commentary: ABA/BNA ¤ 61:601, ALI-LGL ¤ 156, Wolfram ¤ 13.10

Colo.RPC 3.8(b) provides that a prosecutor shall make reasonable efforts to assure that the accused was advised of his right to counsel, the procedure for exercising that right, and a reasonable opportunity to obtain counsel. While no Colorado cases address this rule, it is the same as MR 3.8(b).

3.8:400   Seeking Waivers of Rights from Unrepresented Defendants

¥ Primary Colorado References: CO Rule 3.8(c)
¥ Background References: ABA Model Rule 3.8(c), Other Jurisdictions
¥ Commentary: ABA/BNA ¤ 61:601, ALI-LGL ¤ 156, Wolfram ¤ 13.10

Colo.RPC 3.8(c) provides that a prosecutor shall not attempt to obtain a waiver of important pretrial rights, like a preliminary hearing, from an unrepresented accused. While no Colorado cases address this rule, it is the same as MR 3.8(c).

3.8:500   Disclosing Evidence Favorable to the Accused

¥ Primary Colorado References: CO Rule 3.8(d)
¥ Background References: ABA Model Rule 3.8(d), Other Jurisdictions
¥ Commentary: ABA/BNA ¤ 61:601, ALI-LGL ¤ 156, Wolfram ¤ 13.10.5

Colo.RPC.8(d) provides that except when relieved by a protective order from the tribunal, the prosecutor shall make timely disclosure to the defense of all information that tends to negate the guilt of the accused or mitigate the offense. While no Colorado cases address this rule, it is the same as MR 3.8(d).

Colorado case law, without reference to this rule, holds that the prosecutor cannot suppress evidence which might be helpful to the defense. People v. Walker, 504 P.2d 1098 (Colo. 1972). The prosecutorÕs duty is not merely to convict, but to see that justice is done: to ensure that the jury tries the case solely on the basis of the facts presented to it and to avoid a conviction resulting from misleading or perjured testimony. Id.; People v. Elliston, 508 P.2d (Colo. 1973); DeLuzio v. People, 494 P.2d 589 (Colo. 1972).

3.8:600   Monitoring Extrajudicial Statements by Law Enforcement Officials

¥ Primary Colorado References: CO Rule 3.8(e)
¥ Background References: ABA Model Rule 3.8(e), Other Jurisdictions
¥ Commentary: ABA/BNA ¤ 61:601, ALI-LGL ¤ 156, Wolfram ¤ 13.10

Colo.RPC 3.8(e) provides that a prosecutor shall exercise reasonable care to prevent investigators, law enforcement officials and others associated with the prosecution from making extrajudicial statements that would be prohibited under Colo.RPC 3.8. While no Colorado cases address this rule, it is the same as MR 3.8(e).

3.8:700   Issuing a Subpoena to a Lawyer

¥ Primary Colorado References: CO Rule 3.8(f)
¥ Background References: ABA Model Rule 3.8(f), Other Jurisdictions
¥ Commentary: ABA/BNA ¤ 55:1301, ALI-LGL ¤ 156

Colo.RPC 3.8(f) provides that a prosecutor should not subpoena a lawyer in a grand jury or other criminal proceeding to present evidence unless she reasonably believes that the information is not privileged, the evidence is essential, and there is no other feasible alternative. Colo.RPC 3.8(f) is the same as MR 3.8(f).

The Tenth Circuit Court of Appeals held that Colo. Rule 3.8(f)(1) applies to federal prosecutors in Colorado. See United States of America v. Colorado Supreme Court, 189 F.3d 1281 (10th Cir. 1999). The Tenth Circuit affirmed the district courtÕs holding which found no supremacy clause violation in the rule as modified to eliminate its applicability to grand jury proceedings, and held the modified rule valid and enforceable against federal prosecutors in the investigation and prosecution of federal crimes. See United States of America v. Colorado Supreme Court, 988 F. Supp. 1368 (D. Colo. 1998). The rule was directed toward ethical conduct governing attorney-client relations rather than procedural or substantive rights, and thus was not in conflict with federal law.

3.8:800   Making Extrajudicial Statements

¥ Primary Colorado References: CO Rule 3.8(g)
¥ Background References: ABA Model Rule 3.8(g), Other Jurisdictions
¥ Commentary: ABA/BNA ¤ 61:601, ALI-LGL ¤ 169, Wolfram ¤ 12.2.2

Colorado has no provision on extrajudicial statements specifically applicable to prosecutors. See Colo.RPC 3.6 regarding extrajudicial statements.

3.8:900   Peremptory Strikes of Jurors

¥ Primary Colorado References: CO Rule 3.8
¥ Background References: Other Jurisdictions
¥ Commentary:

C.R.Crim.P. 24(d) and CRS 16-10-14 control preemptory challenges in criminal proceedings. (As to civil proceedings, compare CRCP 40(h)). In Fields v. People, 732 P.2d 1145 (Colo. 1987), the Colorado Supreme Court held that a prosecutor who purposefully, discriminatorily and systematically exercised preemptory challenges to exclude from a jury Spanish surnamed persons solely on the basis of presumed group characteristics violates the United States and Colorado Constitutions. This decision generally followed the reasoning and holding of Batson v. Kentucky, 476 U.S. 79 (1986). As to subsequent decisions applying Fields, see Valdex v. People, 966 P.2d 587 (Colo. 1998).

3.9   Rule 3.9 Advocate in Nonadjudicative Proceedings

3.9:100   Comparative Analysis of Colorado Rule

¥ Primary Colorado References: CO Rule 3.9
¥ Background References: ABA Model Rule 3.9, Other Jurisdictions
¥ Commentary:

This discussion is current through October 31, 2000.

3.9:101      Model Rule Comparison

Colo.RPC 3.9 is the same as the Model Rule.

In the Comment, Colorado added the additional paragraph:

In all appearances before legislative bodies, municipal councils, administrative agencies, and the like, a lawyer should identify himself or herself and, if the lawyer is appearing in a representative capacity, indicate that fact. The lawyer should also disclose to the agency the identity of the client or clients on whose behalf the lawyer is appearing, unless the identity is privileged.

The Committee Comment explained that the comments were expanded to include some of the language from EC 7-15 that help explain a lawyerÕs obligations when appearing before administrative or legislative bodies.

3.9:102      Model Code Comparison

The Comment to Rule 3.9 explains that 3.9 is derived from Code sections such as DR 7-106(B)(1) and extends those provisions to apply equally in front of administrative or legislative bodies. The Committee also referred to EC 7-15, EC 7-16 and EC 7-8.

3.9:200   Duties of Advocate in Nonadjudicative Proceedings

¥ Primary Colorado References: CO Rule 3.9
¥ Background References: ABA Model Rule 3.9, Other Jurisdictions
¥ Commentary: ABA/BNA ¤ , ALI-LGL ¤ 164, Wolfram ¤ 13.8

Colorado does not appear to have any published case law or ethics opinions on this topic.