In People v. Bertagnolli, 861 P.2d 717 (Colo. 1993), a lawyerÕs reference during closing arguments before an arbitration panel to a witnessÕs testimony without disclosing a witnessÕs desire to correct an error in testimony was deemed a false statement. It appears that this should be deemed Òin courtÓ statements. Failure of the lawyer to disclose his claim to ownership of a cabin which was the subject of dispute between client and bank was found to be a violation of Rule 4.1(b) in People v. Mason, 938 P.2d 133 (Colo. 1997).

A violation of Colo.RPC 4.2 will subject the offending attorney to discipline. When disciplining an attorney for a violation of Colo.RPC 4.2, the Colorado Supreme Court has utilized the ABA Standards for Imposing Lawyer Sanctions (1991 & Supp. 1992) (ÒABA StandardsÓ) for guidance in determining the appropriate sanction. Accordingly, the Court has held that, Òin the absence of aggravating or mitigating factors, a public censure Ôis generally appropriate when a lawyer is negligent in determining whether it is proper to engage in communication with an individual in the legal system, and causes injury or potential injury to a party or interference or potential interference with the outcome of the legal proceeding.ÕÓ People v. McCray, 926 P.2d 578, 579 (Colo. 1996) (citing ABA Standards ¤Ê6.33); see also People v. Meyer, 908 P.2d 123, 124 (Colo. 1995) (Public censure appropriate for lawyer who contacted opposing party the lawyer knew was represented by counsel).

The Court has also held that Òsuspension is generally appropriate when a lawyer engages in communication with an individual in the legal system when the lawyer knows that such communication is improper, and causes injury or potential injury to a party or causes interference with the outcome of the proceeding.Ó People v. DeLoach, 944 P.2d 522, 523 (Colo. 1997) (citing ABA Standards ¤ 6.32).

Colo.RPC 4.2 is an ethical rule, designed to regulate the conduct of attorneys. Colorado courts therefore recognize the general principle that while an attorney should be sanctioned for a violation of Colo.RPC 4.2, the harm to the client should be minimized where possible. E.g. Johnson v. Cadillac Plastic Group, Inc., 930 F.ÊSupp. 1437, 1442 (D. Colo. 1996) (ÒRegardless of whether Cadillac and Trujillo were parties for the purposes of Colo.RPC 4.2, the exclusion of evidence would be an inappropriate remedy for [the attorneyÕs] conduct. An exclusionary policy frustrates truth and does not punish the ethical violation. Instead, it works against the client who may have been wronged by the opposing party as far as the substantive claim is concernedÓ); United States v. Thomas, 474 F.2d 110, 112 (10th Cir. 1973), cert. denied, Thomas v. United States, 412 U.S. 932 (1973) (Ò[A]n ethical violation ought to be dealt with by sanctions against the errant attorney, except in special casesÓ).

Of course, those Òspecial casesÓ will arise in which the general principle--that a violation of Colo.RPC 4.2 should punish only the attorney--must yield to the reality of the situation. E.g., In Re S & D Foods, Inc., 144 B.R. 121, 169 (Bankr. D. Colo. 1992) (because attorneyÕs violation of DR 7-104(A)(1) constituted fraud in the inducement, clientÕs loan security documents and guarantees must be rescinded and declared null and voidÓ).

When an attorney violates Colo.RPC 4.2, that attorney is, in essence, held strictly liable for the violation. Accordingly, an attorney will be disciplined regardless of her subjective intent, and regardless of the ultimate outcome of the case. E.g., PeopleÊv. Bottinelli, 782 P.2d 746, 751 (Colo. 1989) (ÒWhatever the merits of respondentÕs beliefs, the communication of his views to Wilmore without first obtaining permission to do so from her attorney was impermissibleÓ); PeopleÊv. Zinn, 746 P.2d 970, 971 (Colo. 1987) (ÒThe fact that a settlement of the contested issues was achieved in no way reduces the magnitude of the impropriety of the respondentÕs professional misconduct. Whatever the content, the communications were strictly prohibited by the Code of Professional Responsibility [DR 7-104(A)(1)], and the respondent was aware of that prohibitionÓ). But see WebbÊv. ABF Freight System, Inc., 155 F.3d 1230, 1246 (10th Cir. 1998), petition for cert. filed, 67 USLW 1384 (1999) (ÒWe are not convinced that OlsenÕs conduct . . . ran afoul of Colo.RPC 4.2 because he did not initiate the communication with Cantrell and he did not ask any questions of Cantrell during their brief telephone conversation. Cantrell blurted out his claim . . . without any prompting from Olsen. Thus, OlsenÕs attempt to raise CantrellÕs statements during cross-examination may not have been inappropriateÓ).

Finally, the rule probably extends to lawyers acting as lawyers, not when they communicate in some other capacity. In an informal letter inquiry, H. Patrick Furman, Daniel Vigil, ÒColorado Rules of Professional Conduct: Implications for Criminal Lawyers,Ó 21 Colo. Law. 2559, 2563 (Dec. 1992), the CBA Ethics Committee addressed the following situation: X, a Colorado lawyer, is a director and officer of A, a corporation. AÕs legal counsel is Y, and not X. In XÕs capacity as an officer and director of A, X communicates directly with officers of other corporations regarding matters in which both A and the other corporations are represented by legal counsel. The CBA Ethics Committee advised that Colo.RPC 4.2 is Òlimited to instances where a lawyer is the attorney for the client. If X is acting only as a director/officer, and not as corporate counsel, then such direct communication is permissible.Ó The committee went on to caution, however, that, pursuant to RuleÊ8.4(a), it would be unethical for Y, AÕs legal counsel, to instruct X regarding his communications. As long as XÕs communication is directed to the corporate entity and not its legal counsel, then the communication is permissible.

4.2:210      "Represented Person" (Contact with an Agent or Employee of a Represented Entity)

Who constitutes a ÒRepresented Person?Ó ÒPersonÓ includes an individual or an entity. Stated generally, an individual or entity is considered to be represented by a lawyer if (1) the person or entity to whom the communication is to be made has retained an attorney or obtained court-appointed counsel; (2) the representation concerns the subject matter of the communication in question; and (3) the communicating lawyer knows the person is represented by counsel concerning the subject matter of the communication. CBA Formal Op. 96, Ex Parte Communications with Represented Persons During Criminal and Civil Regulatory/Investigations and Proceedings (July 15, 1994); see generally People v. Bennett, 810 P.2d 661 (Colo. 1991); CBA Formal Op. 69, Propriety of Communicating with Employee or Former Employee of an Adverse Party Organization (Revision June 20, 1987, addendum issued 1995).

The application of Colo.RPC 4.2 is not dependent upon the individual or entity being named as a party to litigation. As the Comment makes clear, Colo.RPC 4.2 Òcovers any person, whether or not a party to a formal proceeding, who is represented by counsel concerning the matter in question.Ó In Johnson v. Cadillac Plastic Group, Inc., 930 F.Supp. 1437, 1440-42 (D. Colo. 1996), the court recognized that one need not have been formally named a party to litigation before being afforded the protection of Colo.RPC 4.2. Therefore, an entity may be a ÒpartyÓ before litigation formally commences. However, the court also concluded that an interpretation of Colo.RPC 4.2 which limits counsel to (and burdens clients with) the costs of formal discovery during the investigatory stages of civil litigation is not only unfair, but also frustrates the purposes of RuleÊ11 of the Federal Rules of Civil Procedure. On that basis, the court concluded that an entity (through its attorney) is not necessarily prohibited from engaging in legitimate informal fact gathering processes as soon as a potentially adverse party (in this case, a disgruntled employee) notifies the entity that it has consulted an attorney. Accordingly, the court ultimately held that the protections of Colo.RPC 4.2 attach only after an Òadversarial relationshipÓ sufficient to trigger the right to counsel arises.

Furthermore, Colo.RPC 4.2 applies to legal representations other than litigation and formal adjudicative settings. See CBA Formal Op. 69 (covering not only the situation where an attorney wishes to communicate with the employee of an organization that is named as a party, but also one in which there is actual knowledge of representation prior to litigation); CBA Formal Op. 93, Ex Parte Contact with Government Officials (Oct. 16, 1993) (Although Colo.RPC 4.2 most frequently arises in the litigation setting, i.e. threatened or existing lawsuits and pending adversarial administrative proceedings, it equally applies in non-litigation settings, i.e. lobbying efforts, business transactions and contract negotiations. In addition, Colo.RPC 4.2 applies when an attorney appears before an individual or public body decision-maker in a judicial or quasi-judicial settingÑfor example, a zoning decision before a city council or a licensing application hearing before an administrative agency).

Finally, a person or organization is not represented by counsel in every matter simply because it has counsel on general retainer or because it has an in-house counsel staff. Rather, to be a ÒRepresented Person,Ó a person or organization must have taken affirmative steps to either retain counsel in a specific matter or to have referred the specific matter to its in-house counsel. CBA Formal Op. 69; CBA Formal Op. 93; Johnson, 930 F.Supp. at 1440-42; Federal Savings & Loan Insurance Corp. v. Hildenbrand, 1989 WL 107377, ** 4-5 (D. Colo. 1989) (Although DR 7-104(A)(1) is Ònot dependent upon the existence of a civil action, the retaining of an attorney by a party claiming protection of the Rule must have a nexus to a potential dispute. The fact that Hildenbrand had counsel for general business purposes was irrelevant. Absent a specific connection to a potential lawsuit, he was not party to any litigation at that point, nor had he retained an attorney for the purposes of defending himself against possible allegations of wrongdoingÓ).

The phrase Òsubject of the representationÓ concerns only the matter in which the interviewing counsel is representing his or her client. For example, if the interviewing lawyer is communicating with the opposing party regarding a matter outside of the interviewing lawyerÕs representation, then there would be no violation of the Rule; or, if the questioning lawyer knows that the opposing party is represented by a lawyer, but knows that such representation is on a totally unrelated matter, then such communication would not be a violation. CBA Formal Op. 69.

The latter situation often arises in the criminal law context. The U.S. and Colorado State Constitutions prohibit a prosecutor or his agents from communicating directly with a defendant after his Fifth or Sixth Amendment Rights have attached to the pending charge(s). Any such prosecutorial misconduct would also constitute a violation of Colo.RPC 4.2. CBA Formal Op. 96. However, neither a prosecutor nor his agents would be prohibited from communicating directly with that same defendant about a different charge(s) to which the Fifth or Sixth Amendment has not already attached. Id. (Communication made in the course of investigation of new or additional criminal activity to which the Fifth or Sixth Amendment Rights to counsel have not attached constitutes exception to general rule); People v. Hyun Soo Son, 723 P.2d 1337, 1342 (Colo. 1986) (Interpreting DR 7-104(A)(1) and concluding that to hold the ethical rule is violated Òby any communication between a defendant who has obtained counsel on pending charges and agents of the prosecution would preclude prosecutorial agents from investigating possible obstructions of justice . . . . Evidence of bribery obtained in communications between defendant and district attorney without defendantÕs counsel present was admissible where no bribery charges were pending at time of communications; district attorney did not breach [DR 7-104(A)(1)] by communicating with defendant prior to bribery charges being filedÓ); see also CBA Ethics Committee, ÒAbstracts of Responses to Letter Inquiries, First Inquiry,Ó 24 Colo. Law. 755 (April 1995) (If defendant has been charged with theft and retained counsel and defendant is also under investigation for, but has not been charged with, the sale of marijuana, prosecutor may ethically direct undercover police officer to meet with defendant, without notifying counsel, to discuss the purchase of marijuana; such conduct deemed ethical because subject discussed was something other than subject of the representation).

Lastly, the communicating attorney must ÒknowÓ that the person is represented. The attorney must have received direct verbal or written communication of the representation, or received constructive notice from the pleadings. CBA Formal Op. 69. Because Colo.RPC 4.2 applies in all adversarial contexts (and not only in the litigation context), it is reasonable to assume that constructive notice could also be gleaned from documents relevant to those other proceedings. Constructive notice beyond that existing in the pleadings does not constitute knowledge. Id. Therefore, even though one has only indirect or general knowledge of legal representation, such as insurance carriers generally having legal counsel, there is no duty to inquire if a party has legal counsel in the specific matter in question. Id.; Hildenbrand, 1989 WL 107377 at ** 4-5 (Concluding that DR 7-104(A)(1) requires the communicating attorney to have actual knowledge of the representation and that an attorney has no duty to inquire as to whether a person has legal counsel in the specific matter in question).

In a subsequent CBA Formal Op. 93, the CBA states that, under the Rules of Professional Conduct, ÒknowÓ is defined as Òactual knowledge of the fact in question; however, knowledge may be inferred from circumstances. This level of awareness does not differ substantially from that which pertained under DR 7-104(A)(1), or as described in [CBA Formal Op. 69].Ó It is now reasonable to assume that the CBA may be more inclined to expect attorneys to meet a slightly higher standard when determining whether to communicate with a person or entity directly. While Rule 4.2 requires that an attorney ÒknowÓ of the representation, the Colorado Supreme Court has applied different sanctions depending on whether the violation was either ÒnegligentÓ or Òknowing.Ó See cases cited infra.

In any event, the CBA has provided some practical recommendations to avoid Colo.RPC 4.2 violations. See, e.g., CBA Formal Op. 69 (ÒWhere the interviewing lawyer knows that the opposing party is represented by an attorney but he or she is unclear about the area of that representation, he or she is best advised to check with that lawyer before commencing the communication. Thus, if there is any question about whether the representation of a party is for the subject matter of the communication, it is advisable to contact the purported counsel for that party in order to determine the nature of that representation, if any, before proceedingÓ); Hildenbrand, 1989 WL 107377 at ** 4-5 (Although attorney has no duty to inquire as to whether person has legal counsel in the specific matter in question, attorneys are advised by [CBA Formal Op. 69] to ask if unsure); CBA Formal Op. 93 (Prudent for lawyer to make inquiries of the government organizationÕs regular attorney to determine whether there is counsel for the particular matter).

Moreover, whenever an attorney conducts an ex parte interview, the attorney should identify herself as an attorney for a potentially adverse party and explain the purpose of the interview. CBA Formal Op. 69; Hildenbrand, 1989 WL 107377 at ** 4-5 (ÒAn attorney conducting an investigation into possible civil liability need not warn each person interviewed that he or she eventually may be sued. It is not unethical behavior for a potential plaintiffÕs attorney to interview a potential defendant so long as the latter knows that the statement is being taken by the lawyer in his status as attorney for plaintiff.Ó); CBA Formal Op. 93 (Ò[A]t the outset of a permissible contact, an attorney should identify himself as such and state the purpose of the inquiryÓ).

Lastly, in CBA Formal Op. 73, Contact with Insurance Adjuster, the CBA applied the ethical rules to a fact-specific situation regarding who is a Òrepresented person.Ó The CBA concluded that: once a lawyer who represents a plaintiff ÒknowsÓ that an insurance company has retained counsel to represent its insured in a specific matter, plaintiffÕs lawyer may not communicate (or cause another to communicate) with the insurance adjuster regarding that matter unless the plaintiffÕs lawyer obtains the consent of the lawyer representing the insuredÑeven if the adjuster initiates the communication.

The second issue raised in this section is the specific one of when it is permissible to contact an agent or employee of a represented entity. CBA Formal Op. 69, Propriety of Communicating with Employee or Former Employee of an Adverse Party Organization, (Revision adopted June 20, 1987, addendum issued 1995) directly addresses and answers that precise issue. In that opinion, the CBA concluded as follows: When deciding whether it is permissible to communicate ex parte with a current employee of an organization, which organization the lawyer knows to be represented on the subject matter of his communication, the lawyer should obtain the prior consent of the lawyer representing that organization in that matter unless the employee is or was solely a bystander witness, or unless the communication is otherwise permitted by law.

At the outset, the attorney must determine, pursuant to the rules and guidelines already discussed, whether the organization is ÒrepresentedÓ for purposes of Colo.RPC 4.2. If that question is answered in the affirmative, then it needs to be determined which employees within that organization constitute the Òrepresented person,Ó and which individuals are merely bystander witnesses.

The distinction hinges on whether the employee possesses the authority to commit the organization to a position regarding the subject matter of the representation. If the employee is Òin a position to commit the corporation in the particular situation because of his authority as a corporate officer or because for some other reason the law cloaks him with authority, then he, as the alter ego of the corporation, is a [represented person] for purposes of the rule.Ó CBA Formal Op. 69. See also Comment to Colo. RPC 4.2 (Prohibiting contact Òwith persons having managerial responsibility on behalf of the organization, and with any other person whose act or omission in connection that matter may be imputed to the organization for the purposes of civil or criminal liability or whose statement may constitute an admission on the part of the organization.Ó)

CBA Formal Op. 69 makes clear, however, that not all managerial employees are Òrepresented persons.Ó The protection of the Rule is limited to those managerial employees with authority to commit the organization to a position regarding the subject matter of representation. Perhaps the best example of a Òrepresented personÓ is an employee whose duties include making litigation decisions or answering the type of inquiries posed. Managerial employees with the authority to commit the organization to a position, but not with respect to the subject matter of representation, would not be considered Òrepresented persons.Ó Likewise, employees whose acts, omissions or statements are imputed to the organization, but not with respect to the subject of representation, are not protected. For example, the president of a corporation who does not have decision making authority regarding the subject matter of the representation would not be protected by Colo.RPC 4.2, unless his acts, omissions or statements regarding the subject of representation would bind the corporation. See also Johnson v. Cadillac Plastic Group, Inc., 930 F.ÊSupp. 1437, 1440-42 (D.Colo. 1996) (Concluding that not all Òmanagerial employeesÓ are parties and that employees will not be considered parties unless they are in a position to commit or bind the organization on the subject of representation; examples cited are those employees whose duties include making litigation decisions or answering the type of inquiries posed).

All other current employees are only bystander witnesses, and not protected by the rule. Accordingly, such bystander witnesses can be interviewed ex parte. However, if there is any doubt about a particular employeeÕs status, the safest approach is to obtain the prior consent of the organizationÕs counsel. See discussion of the CBAÕs practical recommendations, infra.

CBA Formal Op. 69 also directs that the distinction between bystander and non-bystander witnesses does not apply to an organizationÕs former employees. After leaving the organizationÕs employ, a former employee cannot bind the organization as a matter of law. Accordingly, an attorney does not violate Colo.RPC 4.2 by communicating directly with the former employee about the substantive dispute without the prior consent of the organizationÕs counsel. However, the inquiring attorney may neither inquire into privileged attorney-client communications, nor listen if the former employee attempts to divulge privileged communications voluntarily. See e.g. Sequa Corp.Êv. Lititech, Inc., 807 F.ÊSupp. 653, 660 (D.ÊColo. 1992) (If a party to an action seeks only non-privileged information from a former legal secretary of an adverse party to that action, the provisions of CBA Formal Op. 69 allow the ex parte interview). Opinion No. 69 expressly states that it does not address the scope of the attorney client privilege, the persons protected by it, or the limitations on ex parte contacts that result from it. Clearly, such issues are ones of substantive law and extend beyond the scope of this project. Any attorney attempting to deal with these issues should take the necessary steps to research the substantive law of the attorney client privilege in the relevant jurisdiction.

4.2:220      Communications "Authorized by Law" -- Law Enforcement Activities

This section simply asks, when is an otherwise prohibited communication permissible because it is authorized by law for law enforcement purposes? In CBA Formal Op. 69, the CBA provided a tautological definition: the phrase Òauthorized by lawÓ means that which is authorized by statute, rule or order of court, and most probably the rule of any administrative agency with jurisdiction over the case. Obviously, the Òauthorized by lawÓ exception is meant to accommodate federal, state and local laws, rules, and ordinances, administrative rules or regulations, and judicial decisions. CBA Formal Op. Ê93, Ex Parte Contacts with Government Officials (Oct. 16, 1993); CBA Formal Opinion Number 96, Ex Parte Communications with Represented Persons During Criminal and Civil Regulatory/Investigations and Proceedings (July 15, 1994). Additionally, prosecutors may rely upon fundamental decisions of law in the areas of criminal law and procedure. Id. In addition, the Òauthorized by lawÓ exception applies to an attorneyÕs communications with public officials at a public meeting. Id. These exceptions, also discussed in Section 4.2:230, are mentioned here as well because, undoubtedly, there will be situations in which they apply in the context of law enforcement activities (for example, the use of discovery procedures or the service of subpoenas).

CBA Formal Op. 96, Ex Parte Communications with Represented Persons During Criminal and Civil Regulatory/Investigations and Proceedings (July 15, 1994) specifically addresses whether Colo.RPC 4.2 should prohibit attorneys engaged in criminal and civil regulatory investigations from communicating with persons known to be represented by counsel, beyond those restrictions provided for in the Constitution. In CBA Formal Op. 96, the CBA held that the restriction on communications with a Òrepresented personÓ does not apply during the investigative stage of criminal and civil regulatory enforcement proceedings (i.e. prior to an arrest or indictment), but does apply once adversarial proceedings have begunÑsubject to several well-defined exceptions. See also Johnson v. Cadillac Plastic Group, Inc., 930 F.Supp. 1437, 1440-42 (D. Colo. 1996) (Concluding that Colo.RPC 4.2 does not necessarily prohibit an entity from engaging in legitimate informal and investigative fact gathering processes as soon as a potentially adverse party notifies the entity that it has consulted an attorney. On that basis, the court held that the protections of Colo.RPC 4.2 attach only after an Òadversarial relationshipÓ sufficient to trigger the right to counsel arises); United States v. Ryans, 903 F.2d 731 (10th Cir. 1990), cert. denied, 498 U.S. 855 (1990) (Ethical prohibition is not applicable in the investigative phase of law enforcement because Ò[t]he rule appears to contemplate an adversarial relationship between litigants, whether in a criminal or a civil settingÓ); People v. Hyun Soo Son, 723 P.2d 1337, 1342 (Colo. 1986) (Concluding that to hold that ethical rule is violated Òby any communication between a defendant who has obtained counsel on pending charges and agents of the prosecution would preclude prosecutorial agents from investigating possible obstructions of justiceÓ)[emphasis added].

For the definition of a Òrepresented person,Ó see the discussion in 4.2:210, infra. Of special significance in this section is the fact that neither a prosecutor nor his agents would be prohibited from communicating directly with a defendant about a different charge(s) to which the Fifth or Sixth Amendment has not already attached. CBA Formal Op. 96 (Communication made in the course of investigation of new or additional criminal activity to which the Fifth or Sixth Amendment Rights to counsel have not attached is permissible); People v. Hyun Soo Son, 723 P.2d 1337, 1342 (Colo. 1986) (Holding that Ò[E]vidence of bribery obtained in communications between defendant and district attorney without defendantÕs counsel present was admissible where no bribery charges were pending at time of communications; district attorney did not breach [DR 7-104(A)(1)] by communicating with defendant prior to bribery charges being filedÓ)

CBA Formal Op. 96 permits an attorney, in the course of criminal and civil regulatory enforcement investigations, to communicate (or cause another to communicate) with a Òrepresented personÓ concerning the subject matter of the representation if the communication is made in the course of an investigation into possible unlawful conduct. Moreover, it is irrelevant whether the communication is made overtly or undercover. Examples of permissible contact include: attempts to interview the suspect about the matter being investigated; undercover activity designed to elicit information; or simple observation of the suspectÕs behavior. For example, the 10th Circuit has held that the use of an informant, pursuant to the prosecuting attorneyÕs instructions, to surreptitiously record incriminating conversations with suspects who had retained counsel, but who had not yet been arrested or indicted, did not violate DR 7-104(A)(1). United States v. Ryans, 903 F.2d 731 (10th Cir. 1990), cert. denied, 498 U.S. 855 (1990).

The rationale behind this law enforcement exception to Colo.RPC 4.2 is that prosecutors, by virtue of their office, are required to supervise investigations into possible criminal conduct; and those investigations (and the prosecutorÕs actions in supervising them) are, in fact, Òauthorized by law.Ó CBA Formal Op. 96. Consider the following examples: a prosecutor is a member of the executive branch and obligated to perform duties provided by law (Colorado Constitution, Article VI, Section 13); a prosecutor has the inherent power to investigate and determine who should be prosecuted; a prosecutor appears on behalf of the State, employs necessary investigators, and renders advice to law enforcement officers concerning search warrants (See e.g. C.R.S. ¤ 20-1-106.1 (1986)); a prosecutor is a peace officer, and is empowered to enforce the laws of the State while acting within the scope of her authority and in the performance of her duties (See e.g. C.R.S. ¤ 18-1-901(1)(IIA)(1986)).

However, in order to survive the scrutiny of Colo.RPC 4.2 (not to mention the U.S. and Colorado Constitutions), the communication must occur prior to the attachment of the defendantÕs Fifth or Sixth Amendment rights to counsel with respect to the charges arising out of the criminal activity that is the subject of the investigation or other proceeding. This also necessarily assumes that there has not been a valid and effective waiver of the Fifth or Sixth Amendment right (a substantive legal topic beyond the scope of this ethics project).

Additionally, in CBA Formal Op. 96, the CBA issued the following warning: a prosecutor should be careful not to overstep his authority when contemplating or utilizing ex parte contacts between law enforcement agents or government informants and persons who have retained counsel, even though the contact occurs prior to the attachment of the suspectÕs Fifth or Sixth Amendment rights. Whether a prosecutor has overstepped his bounds appears to be a fact-specific inquiry, to be decided on a case-by-case basis. See e.g. United States v. Kilpatrick, 594 F.Supp. 1324, 1350-51, n.25 (D.Colo. 1984), revÕd, 821 F.2d 1456 (10th Cir. 1987), affÕd, Bank of Nova Scotia v. United States, 487 U.S. 250 (1988) (Prosecutor overstepped ethical bounds by, along with the federal agent, impermissibly interrogating high-level bank employees in hopes of obtaining incriminating information without notifying counsel for the indicted bank; prosecutorÕs actions were premeditated, prompted by the expectation that the worst that would come of his constitutional violations would be a limited suppression of evidence, and is Òprecisely the type of deliberate governmental impropriety that should be discouragedÓ); People v. Rubanowitz, 688 P.2d 231, 247 (Colo. 1984) (Denying defendantÕs claim that prosecutorÕs agentÕs conduct constituted prosecutorial misconduct because defendant was free, at all times, to leave, no coercive tactics were used, and defendant acted voluntarily and in disregard of his attorneyÕs advice at all times).

As stated, pursuant to CBA Formal Op. 96 (and the U.S. and Colorado Constitutions), an attorney may not communicate, or cause another to communicate, with a Òrepresented personÓ after the attachment of that personÕs Fifth or Sixth Amendment rights to counsel. Like most rules, however, this one too has its exceptions, which allow a prosecutor (or his agents) to communicate with a represented person concerning the subject matter of the representation. CBA Formal Op. 96 lists the following exceptions: (1) the purpose of the communication is to determine whether the person is, in fact, represented by counsel; (2) counsel for the represented person is given notice of the communication and consents to it; (3) the communication is made pursuant to discovery procedures or judicial or administrative process including, but not limited to, the service of subpoenas; (4) the communication is made in the course of an investigation of new or additional criminal activity to which the 5th or 6th Amendment right to counsel has not attached; (5) the Òrepresented personÓ initiates the communication with the prosecutor (or indirectly, through a person known to the Òrepresented personÓ to be under the direction or supervision of the prosecutor, such as an undercover police officer or a cooperating witness)Ñas long as the Òrepresented personÓ has knowingly, intelligently, and voluntarily waived the presence of counsel; and (6) if the prosecutor reasonably believes there is an imminent threat to the safety or life of any person, the purpose of the communication is to obtain information to protect against the risk of serious injury or death, and the communication is reasonably necessary to protect against such risk. The new or additional criminal activity may include: (a) activity separate from the activity that is the subject of the pending charges; (b) activity intended to impede the administration of justice as to the pending charges (for example: obstruction of justice; subordination of perjury; jury tampering; murder, assault or intimidation of a witness; bail jumping; or unlawful flight to avoid prosecution); and (c) activity that is a continuationÑafter the filing of an information or indictmentÑof the activity that is the subject of the pending charges (for example: continuation of conspiracy; or scheme to defraud).

4.2:230      Communications "Authorized by Law" -- Other

This section simply asks, when is an otherwise prohibited communication permissible because it is Òauthorized by lawÓ? A number of the principles referred to in this section are revisited and discussed at length in 4.2:240, ÒCommunication with a Represented Government Agency or Officer.Ó

In CBA Formal Op. 69, the CBA provided a tautological definition: the phrase Òauthorized by lawÓ means that which is authorized by statute, rule or order of court, and most probably the rule of any administrative agency with jurisdiction over the case. Like most tautologies, however, that definition is of marginal utility.

Obviously, the Òauthorized by lawÓ exception is meant to accommodate specific federal, state and local laws, rules, ordinances and regulations which specifically authorize direct communications (for example, CRCP 4, which permits service directly on a party; where an ordinance gives parents the right to attend placement team meetings conducted by the local school board, then the parentsÕ attorney may communicate directly with school board officials present at the meeting). In addition, the Òauthorized by lawÓ exception applies to an attorneyÕs communications with public officials at a public meeting. See generally CBA Formal Op. Ê93, Ex Parte Contacts with Government Officials (Oct. 16, 1993).

As discussed, supra, in 4.2:240, Colo.RPC 4.2 generally applies to communications with the government, and an attorney may communicate ex parte with only a bystander witness. (See discussion, infra, on CBA Formal Op. Ê69 and the definition of a Òbystander witnessÓ.) However, as CBA Formal Op. 93 makes clear, the First Amendment rights to speak and to petition the government give rise to two distinct Òauthorized by lawÓ exceptions: (1) an attorney may communicate ex parte with a more limited group of government officials who are considered Òmanagerial employeesÓ only in the sense that their statements may be admissible against the government, but who are not in positions of authority and whose conduct is not at issue in contemplated or commenced litigation or other adversarial proceedings; and (2) in the context of a legislative determination or rule-making by an administrative agency, ex parte communication with the members of the body or agency is permissible, even though they are obviously Òmanagerial employees,Ó (unless the ex parte contact is specifically prohibited by law). In conjunction with these exceptions, CBA Formal Op. 93 dictates that, in close cases, a balancing test favoring ex parte communications is appropriate because of the fundamental First Amendment rights to speak and to petition the government. See also Article II, Section 24, Colorado Constitution. The application of this Òbalancing testÓ is particularly appropriate in the legislative, regulatory or administrative setting.

CBA Formal Op. 93 also addresses the broad statement, made in the Comments to Colo.RPC 4.2, that the Òauthorized by lawÓ exception Òincludes the right of a party to a controversy with the government agency to speak with government officials about the matter.Ó Taken literally, this formulation of the exception would swallow the rule. The most obvious example is that it would permit direct communication with the government official specifically named as a party in a pending lawsuit. In CBA Formal Op. 93, the CBA clarifies any potential dispute by holding that this Colo.RPC 4.2 comment was not intended to allow ex parte communications with government employees in positions of authority, or with government employees whose conduct is at issue in a matter that is in contemplated or commenced litigation or other adversarial proceedings. Note that this is merely another way of re-stating, in converse fashion, exception number one (1) described in the preceding paragraph.

Due to the potential breadth of the First Amendment-based Òauthorized by lawÓ exceptions, CBA Formal Op. 93 encourages attorneys to utilize the following procedures in order to provide government attorneys some notice of the contact: (1) certain ex parte interviews allowed, but attorney must immediately disclose, at the initial contact, his position and the purpose of the contact; (2) informing the employee of her right to refuse the interview or to have the interview conducted in the presence of either the governmentÕs or her own personal attorney; and (3) requiring the contacting attorney to provide prior or subsequent notice to the governmentÕs attorney of the ex parte contact.

4.2:240      Communication with a Represented Government Agency or Officer

The issue raised in this section concerns when it is permissible to communicate directly with a government agency or officer which is a Òrepresented personÓ for purposes of Colo.RPC 4.2. Once again, at the outset, it must be determined, pursuant to the rules and guidelines already discussed, whether the government agency is ÒrepresentedÓ for purposes of Colo.RPC 4.2. If that question is answered in the affirmative, then it needs to be determined which officers or employees within that organization constitute the Òrepresented person.Ó CBA Formal Op.Ê93, Ex Parte Contacts with Government Officials directly addresses and answers this issue.

Recall, however, that an organization is not represented by counsel in every matter simply because it has counsel on general retainer or has an in-house counsel staff. See discussion, infra. For example, it could always be argued that the State of Colorado is ÒrepresentedÓ by the State Attorney General; acceptance of such an argument, however, would stultify everyday communications with the government. Accordingly, the government is a Òrepresented personÓ only if it has taken affirmative steps to retain counsel in a specific matter or referred the specific matter to its in-house counsel staff. In addition, it may not be obvious to an attorney that the government body is represented by counsel. Therefore, at the outset of a permissible contact, an attorney should identify himself as such and state the purpose of the inquiry. Likewise, it is prudent for an attorney to ask the governmentÕs regular counsel whether there is counsel for the particular matter.

CBA Formal Op. 93, by its express terms, incorporates the CBA Formal Op. 69; CBA Formal Op. 93 also supplements CBA Formal Op. 69 and provides specific guidance with respect to contacts with government organizations. The scope of CBA Formal Op. 93 makes clear that it applies beyond the litigation or other formal adjudicative setting, and addresses all situations (i.e. business transactions, lobbying efforts, and quasi-judicial settings) where a partyÕs attorney deals with a government body. Lastly, CBA Formal Op. 93 does not discuss specific federal, state or local laws, rules or regulations that may specifically authorize direct contact between an attorney and a government employee (for example, CRCP 4, which permits service directly on a party).

On its face, Colo.RPC 4.2 does not distinguish between government and non-government organizations. CBA Formal Op. 93 provides, therefore, that, in general, Colo.RPC 4.2 applies to an attorneyÕs communications with the government through its employees and elected and other public officials in the same manner as it applies to a represented non-governmental organization and its employees. An attorney, therefore, may have ex parte communication only with government employees who are bystander witnesses. (See discussion of CBA Formal Op. 69, infra, for the definition of a bystander witness.) Obviously, direct communication with a government official is permitted when authorized by a federal, state or local statute. For example, when a statute gives a parent the right to attend placement meetings conducted by the local school board, then the parentÕs lawyer may communicate directly with school board officials who are present at the meeting. Similarly, an attorney may communicate directly with public officials at a public meeting.

However, the First Amendment rights to speak and to petition the government necessitate modifications to the definition of a Òbystander witnessÓ when the communication is with a government official. Accordingly, an attorney may have ex parte communication with a more limited group of government officials who are Òmanagerial employeesÓ only in the sense that their statements may be admissible against the government, but who are not in positions of authority and whose conduct is not at issue in the contemplated or commenced litigation or other adversarial proceedings. Furthermore, CBA Formal Op. 93 establishes that in the context of a legislative determination or rule-making by an administrative agency, ex parte contact with the members of the body or agency is permissible, even though they are obviously Òmanagerial employees.Ó Both of these government-specific rules are based on the First Amendment and, therefore, constitute Òauthorized by lawÓ exceptions to the prohibition on direct communication with a Òrepresented person.Ó This latter principle obtains unless the ex parte contact is specifically prohibited by law. For example, officials of an agency governed by the State Administrative Procedure Act who are acting in a judicial or quasi-judicial capacity are specifically prohibited from receiving or considering ex parte materials or representations. CRS ¤ 24-4-105(14). An attorneyÕs ex parte contact in such a situation is both an ethical violation and, potentially, cause for invalidating the agencyÕs decision.

Based on the fundamental rights to speak and to petition the government for a redress of grievances under the First Amendment of the U.S. Constitution and Article II, Section 24 of the Colorado Constitution, the CBA has determined that, in Òclose cases,Ó a balancing test favoring ex parte communications should be applied. CBA Formal Op. 93. This is particularly true in the legislative, regulatory or administrative setting. Id.

Finally, CBA Formal Op. 93 addresses the validity of a blanket prohibition imposed by the government on its employees having contact with opposing counsel. CBA Formal Op. 93 concludes that such a Ògag ruleÓ is ethically impermissible for two independent and adequate reasons: (1) it violates a partyÕs First Amendment rights; or (2) it preempts counselÕs right, as delineated in Opinion No. 93 (see discussion, infra) to approach certain government officials on an ex parte basis. Accordingly, a Ògag ruleÓ is generally impermissible.

4.2:250      Communication with a Confidential Agent of Non-Client

Colorado does not appear to have specifically addressed particular sub-section.

4.3   Rule 4.3 Dealing with Unrepresented Person

4.3:100   Comparative Analysis of Colorado Rule

¥ Primary Colorado References: CO Rule 4.3
¥ Background References: ABA Model Rule 4.3, Other Jurisdictions
¥ Commentary:

4.3:101      Model Rule Comparison

Colo.RPC 4.3 incorporates all of MR 4.3, but Colo.RPC 4.3 also requires a lawyer to Òstate that the lawyer is representing a client.Ó Additionally, Colo.RPC 4.3 mandates that Ò[t]he lawyer shall not give advice to the unrepresented person other than to secure counsel.Ó

The Comment to Colo.RPC 4.3 is identical to the Model Rule Comment.

4.3:102      Model Code Comparison

The Committee Comment to Colo.RPC 4.3 indicates that the Colorado RuleÕs additional provisions insure that Colo.RPC 4.3 parallels DR 7-104(A)(2) of the Code.

4.3:200   Dealing with Unrepresented Person

¥ Primary Colorado References: CO Rule 4.3
¥ Background References: ABA Model Rule 4.3, Other Jurisdictions
¥ Commentary: ABA/BNA ¤ 71:501, ALI-LGL ¤ 163, Wolfram ¤ 11.6.3

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4.4   Rule 4.4 Respect for Rights of Third Persons

4.4:100   Comparative Analysis of Colorado Rule

¥ Primary Colorado References: CO Rule 4.4
¥ Background References: ABA Model Rule 4.4, Other Jurisdictions
¥ Commentary:

4.4:101      Model Rule Comparison

Colo.RPC 4.4 and its Comment are identical to the Model Rule and its Comment.

4.4:102      Model Code Comparison

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4.4:200   Disregard of Rights or Interests of Third Persons

¥ Primary Colorado References: CO Rule 4.4
¥ Background References: ABA Model Rule 4.4, Other Jurisdictions
¥ Commentary: ABA/BNA ¤ 71:101, ALI-LGL ¤¤ 163, 166, 167, Wolfram ¤ 12.4.4

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

4.4:210      Cross-Examining a Truthful Witness; Fostering Falsity

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

4.4:220      Threatening Prosecution [see 8.4:900]

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