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Colorado Legal Ethics
4.1:100 Comparative Analysis of Colorado Rule
This topic is current through October 31, 2000.
While subsection (b) of the Colorado and Model Rules is identical, Colo.RPC 4.1(a) eliminates the materiality requirement contained in MR 4.1(a). MR 4.1(a) states that “a lawyer shall not knowingly make a false statement of material fact or law to a third person.” (Emphasis added.) Colo.RPC 1.4(a), on the other hand, provides only that “a lawyer shall not make a false or misleading statement of fact or law to a third person.”
The Committee Comment to Colo.RPC 4.1 explains that the modification is intended to “not limit the prohibition to material statements, and to eliminate the argument over whether or not a statement concerned a ‘material’ fact.”
4.1:200 Truthfulness in Out-of-Court Statements
Rule 4.1(a) provides that in the course of representing a client, a lawyer shall not knowingly make a false or misleading statement of fact or law to a third person. Several Colorado decisions apply this rule or its predecessors. For example, in In re Myers, 981 P.2d 143 (Colo. 1999), a lawyer was disciplined for falsely telling a complaining witness in a theft case that she did not represent the defendant, that she would use a nonexistent criminal record against the complaining witness if the case went to trial, and asserting that the witness was as guilty as the defendant because he signed a confession without indicating his role.
Similarly, a lawyer was disbarred because of knowingly misappropriating funds of clients, falsifying bank records to the Office of Disciplinary Counsel, continuing to practice law while under a suspension without informing his law partner, his clients or opposing parties or court of his suspension and failing to keep a client informed about the status of her case. In re Hugen, 973 P.2d 1267 (1999).
In People v. Bertagnolli, 861 P.2d 717 (Colo. 1993), a lawyer’s reference during closing arguments before an arbitration panel to a witness’s testimony without disclosing a witness’s desire to correct an error in testimony was deemed a false statement. It appears that this should be deemed “in court” 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).
So too, a forgery of an adoption decree was found inter alia to violate a rule that a lawyer should not knowingly make false statements of fact or law in People v. Harmon, 903 P.2d 651 (Colo. 1995), although it appears that this type of violation is better covered under other rules.
In People v. Newman, 925 P.2d 783 (Colo. 1996), the attorney made false or misleading statements of fact or law to a customer of a corporation for which he worked when he represented himself as a lawyer with a multi-state practice, implied he was licensed to practice law in Colorado even though he was on inactive status, implied that the customer would be liable for his attorneys’ fees when in fact he was not paid any fees and actually engaged in the practice of law while on inactive status.
CBA Formal Op. 25, Use of Attorney’s Signature on Collection Case Summons (August 25, 1962, Addendum issued 1995) concluded that it was unethical for a lawyer to consent to or acquiesce in an arrangement whereby his name or signature appeared on a summons as an attorney when the summons was in fact prepared by his client, a collection agency, and not under his direction and control.
More importantly, in CBA Formal Op. 80, Lawyer’s Duty to Disclose Mistakes in Commercial Closing (February 18, 1989, Addendum issued 1995), the Committee concluded that a lawyer representing a client in the closing of a commercial transaction has a duty of honesty and fair dealing to the other party and the other party’s attorney at closing such that if one party or its attorney has made an undeniable mistake in the closing settlement statement regarding a basic assumption or element upon which a contract between the parties is based and silence by the other parties would be conduct amounting to a knowing misrepresentation, the attorney must advise his client to disclose the mistake rather than remain silent about the mistake and accept the benefit of it. The Committee further ruled that if the client refuses to disclose, the attorney may not continue representing the client in the closing, as to do so would violate DR 1-102(A)(4) and potentially also DR 7-102(A)(3), (5), (7) & (8).
CBA Formal Op. 80, Lawyer’s Duty to Disclose Mistakes in Commercial Closing (Feb. 18, 1989; addendum issued 1995) opined with respect to a lawyer’s duty to disclose mistakes in a commercial closing to the other party. The circumstance discussed was when the lawyer realizes that the other party, in preparing the settlement statement, has made an undeniable mistake regarding a basic assumption or element on which the contract between the parties is based. The mistake, if not discovered, will benefit the lawyer’s client financially. The client requests the attorney not to disclose the mistake. The Committee opined that if the silence by the lawyer would be conduct amounting to a knowing misrepresentation, an attorney must advise his client to disclose the mistake rather than remain silent about the mistake and accept the benefits of it. The Committee did not define when it would constitute a knowing misrepresentation.
If the client refuses the disclosure, the lawyer may not continue representing the client in the closing. As to whether an attorney is also permitted or required to make disclosure to the other party depends, according to the Committee, on whether, under the facts and circumstances, the attorney’s previous silence and other conduct, despite discontinuing participation in the closing, would be conduct by the attorney (i) involving dishonesty, fraud, deceit or misrepresentation, (ii) resulting in concealing or knowingly failing to disclose that which the attorney is required by law to reveal, or (iii) knowingly make a false statement of fact or law.
Lastly, the Committee opined that if the lawyer participates in the closing without disclosure being made and later determines disclosure should have been made, the attorney should call upon the client to rectify the error. If the client refuses, the lawyer may similarly be permitted or required to disclose the mistake to the other party, depending upon the facts and circumstances. The Opinion was rendered under the Code of Professional Responsibility. The 1995 Addendum suggests the Opinion continues to provide guidance to attorneys.
The Opinion fails to define when such failure to disclose would be conduct amount to a knowing misrepresentation; when the attorney’s previous silence and other conduct would be conduct involving dishonesty, fraud, deceit or misrepresentation, or results in concealing or knowing failure to disclose that which an attorney is required by law to reveal or knowingly making a false statement of law or fact.
It is interesting to note that the Committee opined that the facts giving rise to the inquiry Ý the discovery that buyer or buyer’s attorney has made an error in the closing settlement statement benefiting seller Ý involves information that the Committee considers a secret under Rule DR 4-101(A), now Rule 1.6(a). The Committee opined that the attorney obtained the information about the error while performing work on behalf of a client and since the client does not wish the attorney to disclose the information, before disclosure can be required of the seller’s attorney an exception to the confidentiality rules must be found to be applicable.
The Committee reasoned that under the circumstances, each of the parties had a duty to act fairly and in good faith to fulfill the ends of the agreement, and that under these circumstances, rules requiring honesty have a plain meaning. The Committee cited then CRCP 241(B)(4), which required attorneys to act in accordance with the highest standards of honesty, justice and morality. Similarly, DR 1-102(A)(4) now essentially Colo.RPC 8.4(c) prohibited conduct involving dishonesty, fraud, deceit or misrepresentation. Ultimately the Committee concluded that it would be dishonest for Z and seller’s attorney to continue with the closing, to not point out the error in the closing settlement statement and accept the overpayment. As to nondisclosure constituting a tort, the Committee cited Restatement Second of Tort § 551 (1965).
This lengthy Opinion provides a detailed analysis, with perhaps so much detail that it leaves a lawyer having greater questions as to the action that he must take than without the Opinion.
Colorado does not appear to have any reported decisions of the Colorado courts or ethics opinions concerning this rule, other than Formal Op. 80, Lawyer’s Duty to Disclose Mistakes in Commercial Closing (Feb. 18, 1989, Addendum issued 1995), discussed under 4.1:200.
4.2:100 Comparative Analysis of Colorado Rule
Colo.RPC 4.2 and MR 4.2 are virtually identical, with the exception that MR 4.2 refers to “a person the lawyer knows to be represented by another lawyer,” and Colo.RPC 4.2 refers to “a party the lawyer knows to be represented by another lawyer.” This semantic difference is one without a distinction, however, as the Comment to Colo.RPC 4.2 makes clear that the Rule “covers any person, whether or not a party to a formal proceeding, who is represented by counsel concerning the matter in question.”
The Comment to Colo.RPC 4.2, subject to the semantic difference between “person” and party” above, adopts the Comment to MR 4.2, but not in its entirety. The Colorado Supreme Court did not adopt sections , , , and  of the Model Rule Comment. Both comments recognize that a lawyer having “independent justification for communicating with the other party is permitted to do so.” The Comment  to MR 4.2 indicates that, in addition to an “independent justification,” a lawyer may also communicate with the other party if the lawyer has “legal authorization” to do so; the Comment to Colo.RPC 4.2 does not include that alternative ground.
4.2:200 Communication with a Represented Person
The Committee Comment states that Colo.RPC 4.2 is “essentially the same as DR 7-104(A) of the Code” (The Colorado Code of Professional Responsibility was in effect through December 31, 1993). The salient subsection of DR 7-104(A) provided that “During the course of his representation of a client a lawyer shall not: (1) Communicate or cause another to communicate on the subject of the representation with a party he knows to be represented by a lawyer in that matter unless he has the prior consent of the lawyer representing such other party or is authorized by law to do so.” The purpose of DR 7-104(A)(1) was to prevent the deprivation, undermining, or bypassing of a client’s right to the advice of counsel.
Colo.RPC 4.2 also incorporates EC 7-18, which mandated that “a lawyer should not communicate on the subject matter of the representation of his client with a person he knows to be represented in the matter by a lawyer unless pursuant to law or rule of court or unless he has the consent of the lawyer for that person.” Accordingly, an analysis of Colo.RPC 4.2 necessarily includes those authorities which have interpreted DR 7-104(A)(1) and EC 7-18. This narrative will make numerous references to CBA Formal Opinion 69, Propriety of Communicating with Employee or Former Employee of an Adverse Party Organization, (Revision adopted June 20, 1987, addendum issued 1995). Although Opinion. 69 analyzes DR 7-104(A)(1), the 1995 Addendum expressly recognizes that while the exact language of 4.2 differs somewhat from DR 7-104(A)(1), Opinion 69 continues to provide guidance to Colorado attorneys.
There are, however, some differences between Colo.RPC 4.2 and DR 7-104(A)(1). First, the express language of DR 7-104(A)(1) prohibited a lawyer from communicating “with a party he knows to be represented” (emphasis added). While Colo.RPC 4.2 retains the word “party,” the Colorado Comments resolve any potential ambiguity: “This rule also covers any person, whether or not a party to a formal proceeding, who is represented by counsel concerning the matter in question” (emphasis added). Compare: Elliott v. Aspen Brokers, Ltd., 811 F. Supp. 586, 589-90 (D. Colo. 1993) (Lawyer did not violate DR 7-104 when he informally interviewed a witness prior to taking her deposition because she “was not a party to the state court litigation”).
Second, DR 7-104(A)(1)’s definition of a proscribed “communication” expressly included “or causes another to communicate.” Colo.RPC 4.2 does not contain that same language. However, despite the omission, an attorney should still not cause a client or agent to communicate directly with a represented person. See CBA Formal Op. No. 96, Ex Parte Communications with Represented Persons During Criminal and Civil Regulatory/Investigations and Proceedings (July 15, 1994) (Analyzing Colo.RPC 4.2 and concluding that attorney may not communicate, or cause another to communicate, with a represented person.)
Finally, although the text of DR 7-104(A)(1) did not distinguish between adverse parties and parties with interests compatible with those of the party represented by the communicating lawyer, the title of DR 7-104 was “Communicating With One of Adverse Interest.” Colo.RPC 4.2 makes no distinction between adverse and aligned parties.
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) (“ABA Standards”) for guidance in determining the appropriate sanction. Accordingly, the Court has held that, “in the absence of aggravating or mitigating factors, a public censure ‘is 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.’” People v. McCray, 926 P.2d 578, 579 (Colo. 1996) (citing ABA Standards § 6.33); 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 “suspension 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.” 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. Supp. 1437, 1442 (D. Colo. 1996) (“Regardless 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 attorney’s] 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 concerned”); United States v. Thomas, 474 F.2d 110, 112 (10th Cir. 1973), cert. denied, Thomas v. United States, 412 U.S. 932 (1973) (“[A]n ethical violation ought to be dealt with by sanctions against the errant attorney, except in special cases”).
Of course, those “special cases” 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 attorney’s violation of DR 7-104(A)(1) constituted fraud in the inducement, client’s loan security documents and guarantees must be rescinded and declared null and void”).
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., People v. Bottinelli, 782 P.2d 746, 751 (Colo. 1989) (“Whatever the merits of respondent’s beliefs, the communication of his views to Wilmore without first obtaining permission to do so from her attorney was impermissible”); People v. Zinn, 746 P.2d 970, 971 (Colo. 1987) (“The fact that a settlement of the contested issues was achieved in no way reduces the magnitude of the impropriety of the respondent’s 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 prohibition”). But see Webb v. ABF Freight System, Inc., 155 F.3d 1230, 1246 (10th Cir. 1998), petition for cert. filed, 67 USLW 1384 (1999) (“We are not convinced that Olsen’s 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, Olsen’s attempt to raise Cantrell’s statements during cross-examination may not have been inappropriate”).
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, “Colorado Rules of Professional Conduct: Implications for Criminal Lawyers,” 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. A’s legal counsel is Y, and not X. In X’s 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 “limited 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.” The committee went on to caution, however, that, pursuant to Rule 8.4(a), it would be unethical for Y, A’s legal counsel, to instruct X regarding his communications. As long as X’s communication is directed to the corporate entity and not its legal counsel, then the communication is permissible.
Who constitutes a “Represented Person?” “Person” 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 “covers any person, whether or not a party to a formal proceeding, who is represented by counsel concerning the matter in question.” 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 “party” 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 Rule 11 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 “adversarial relationship” 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 setting—for 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 “Represented Person,” 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 “not 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 wrongdoing”).
The phrase “subject of the representation” 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 lawyer’s 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 “by 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 defendant’s 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 filed”); see also CBA Ethics Committee, “Abstracts of Responses to Letter Inquiries, First Inquiry,” 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 “know” 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, “know” is defined as “actual 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].” 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 “know” of the representation, the Colorado Supreme Court has applied different sanctions depending on whether the violation was either “negligent” or “knowing.” 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 (“Where 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 proceeding”); 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 organization’s 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 (“An 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 plaintiff’s 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.”); CBA Formal Op. 93 (“[A]t the outset of a permissible contact, an attorney should identify himself as such and state the purpose of the inquiry”).
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 “represented person.” The CBA concluded that: once a lawyer who represents a plaintiff “knows” that an insurance company has retained counsel to represent its insured in a specific matter, plaintiff’s lawyer may not communicate (or cause another to communicate) with the insurance adjuster regarding that matter unless the plaintiff’s lawyer obtains the consent of the lawyer representing the insured—even 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 “represented” 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 “represented person,” 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 “in 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.” CBA Formal Op. 69. See also Comment to Colo. RPC 4.2 (Prohibiting contact “with 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.”)
CBA Formal Op. 69 makes clear, however, that not all managerial employees are “represented persons.” 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 “represented person” 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 “represented persons.” 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. Supp. 1437, 1440-42 (D.Colo. 1996) (Concluding that not all “managerial employees” 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 employee’s status, the safest approach is to obtain the prior consent of the organization’s counsel. See discussion of the CBA’s practical recommendations, infra.
CBA Formal Op. 69 also directs that the distinction between bystander and non-bystander witnesses does not apply to an organization’s former employees. After leaving the organization’s 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 organization’s 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. v. Lititech, Inc., 807 F. Supp. 653, 660 (D. Colo. 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.
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 “authorized by law” 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 “authorized by law” exception is meant to accommodate federal, state and local laws, rules, and ordinances, administrative rules or regulations, and judicial decisions. CBA Formal Op. 93, 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 “authorized by law” exception applies to an attorney’s 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 “represented
person” 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
begun—subject 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 “adversarial relationship” sufficient to trigger the right to counsel
arises); United States v. Ryans, 903 F.2d 731 (10th
For the definition of a “represented person,” 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 “[E]vidence of bribery obtained in communications between defendant and district attorney without defendant’s 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 filed”)
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 “represented person”
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 suspect’s behavior. For
example, the 10th
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 prosecutor’s actions in supervising them) are, in fact, “authorized by law.” 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 defendant’s 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 suspect’s 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), rev’d, 821 F.2d 1456 (10th
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 “represented person” after the attachment
of that person’s 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
This section simply asks, when is an otherwise prohibited communication permissible because it is “authorized by law”? A number of the principles referred to in this section are revisited and discussed at length in 4.2:240, “Communication with a Represented Government Agency or Officer.”
In CBA Formal Op. 69, the CBA provided a tautological definition: the phrase “authorized by law” 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 “authorized by law” 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 parents’ attorney may communicate directly with school board officials present at the meeting). In addition, the “authorized by law” exception applies to an attorney’s communications with public officials at a public meeting. See generally CBA Formal Op. 93, 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. 69 and the definition of a “bystander witness”.) However, as CBA Formal Op. 93 makes clear, the First Amendment rights to speak and to petition the government give rise to two distinct “authorized by law” exceptions: (1) an attorney may communicate ex parte with a more limited group of government officials who are considered “managerial employees” 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 “managerial employees,” (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 “balancing test” 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 “authorized by law” exception “includes the right of a party to a controversy with the government agency to speak with government officials about the matter.” 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 “authorized by law” 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 government’s or her own personal attorney; and (3) requiring the contacting attorney to provide prior or subsequent notice to the government’s attorney of the ex parte contact.
The issue raised in this section concerns when it is permissible to communicate directly with a government agency or officer which is a “represented person” 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 “represented” 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 “represented person.” CBA Formal Op. 93, 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 “represented” by the State Attorney General; acceptance of such an argument, however, would stultify everyday communications with the government. Accordingly, the government is a “represented person” 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 government’s 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 party’s 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 attorney’s 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 parent’s 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 “bystander witness”
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 “managerial employees”
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 “managerial employees.”
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 “close cases,” 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.
CBA Formal Op. 93 recognizes that, in order to accommodate these First Amendment concerns, the government may be put at somewhat of a disadvantage. To compensate for this, CBA Formal Op. 93 cites several common- sense recommendations, utilized by other jurisdictions, which attempt to give government attorneys some notice of the ex parte communications. Opinion 93 lists the following examples: (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 government’s or her own personal attorney; and (3) requiring the contacting attorney to provide prior or subsequent notice to the government’s attorney of the ex parte contact.
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 “gag rule” is ethically impermissible for two independent and adequate reasons: (1) it violates a party’s First Amendment rights; or (2) it preempts counsel’s right, as delineated in Opinion No. 93 (see discussion, infra) to approach certain government officials on an ex parte basis. Accordingly, a “gag rule” is generally impermissible.
Colorado does not appear to have specifically addressed particular sub-section.
4.3:100 Comparative Analysis of Colorado Rule
Colo.RPC 4.3 incorporates all of MR 4.3, but Colo.RPC 4.3 also requires a lawyer to “state that the lawyer is representing a client.” Additionally, Colo.RPC 4.3 mandates that “[t]he lawyer shall not give advice to the unrepresented person other than to secure counsel.”
4.3:200 Dealing with Unrepresented Person
[The discussion of this topic has not yet been written.]
4.4:100 Comparative Analysis of Colorado Rule
[The discussion of this topic has not yet been written.]
4.4:200 Disregard of Rights or Interests of Third Persons
[The discussion of this topic has not yet been written.]
[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.]