Colo. RPC 3.4

History

Source: Entire Appendix repealed and readopted April 12, 2007, effective January 1, 2008. COMMENT [1] The procedure of the adversary system contemplates that the evidence in a case is to be marshaled competitively by the contending par- ties. Fair competition in the adversary system is secured by prohibitions against destruction or concealment of evidence, improperly influenc- ing witnesses, obstructive tactics in discovery procedure, and the like. [2] Documents and other items of evidence are often essential to establish a claim or de- fense. Subject to evidentiary privileges, the right of an opposing party, including the gov- ernment, to obtain evidence through discovery or subpoena is an important procedural right. The exercise of that right can be frustrated if relevant material is altered, concealed or de- stroyed. Applicable law in many jurisdictions makes it an offense to destroy material for pur- pose of impairing its availability in a pending proceeding or one whose commencement can be foreseen. Falsifying evidence is also gener- ally a criminal offense. Paragraph (a) applies to evidentiary material generally, including com- puterized information. Applicable law may per- mit a lawyer to take temporary possession of physical evidence of client crimes for the pur- pose of conducting a limited examination that will not alter or destroy material characteristics of the evidence. In such a case, applicable law may require the lawyer to turn the evidence over to the police or other prosecuting authority, depending on the circumstances. [3] With regard to paragraph (b), it is not improper to pay an expert or non-expert’s ex- penses or to compensate an expert witness on terms permitted by law. It is improper to pay any witness a contingent fee for testifying. A lawyer may reimburse a non-expert witness not only for expenses incurred in testifying but also for the reasonable value of the witness’s time expended in testifying and preparing to testify, so long as such reimbursement is not prohibited by law. The amount of such compensation must be reasonable based on all relevant circum- stances, determined on a case-by-case basis. [4] Paragraph (f) permits a lawyer to advise relatives and employees of a client to refrain from giving information to another party be- cause the relatives or employees may identify their interests with those of the client. See also Rule 4.2. However, other law may preclude such a request. See Rule 16, Colorado Rules of Criminal Procedure. ANNOTATION Law reviews. For article, ‘‘Enforcing Civil- ity: The Rules of Professional Conduct in De- position Settings’’, see 33 Colo. Law. 75 (Mar. 2004). For article, ‘‘The Ethical Preparation of Witnesses’’, see 42 Colo. Law. 51 (May 2013). For article, ‘‘Out of Bounds: Boundary Issues in the Practice of Law’’, see 43 Colo. Law. 57 (Dec. 2014). For article, ‘‘Handling Electronic Documents Purloined by a Client’’, see 48 Colo. Law. 22 (Jan. 2019). Annotator’s note. Rule 3.4 is similar to Rule 3.4 as it existed prior to the 2007 repeal and readoption of the Colorado rules of professional conduct. Relevant cases construing that provi- sion have been included in the annotations to this rule. When section (b) of this rule and the rules of evidence overlap, the proper approach is for trial courts to balance the probative value of the evidence against the danger of unfair prejudice. Murray v. Just In Case Bus. Light- house, 2016 CO 47M, 374 P.3d 443. In so doing, trial courts should not exclude testimony from improperly compensated wit- nesses unless they determine that the testimo- ny’s danger of unfair prejudice substantially outweighs its probative value. Murray v. Just In Case Bus. Lighthouse, 2016 CO 47M, 374 P.3d 443. The trial court is best situated to decide on a case-by-case basis whether the testimony of a witness compensated under a contingent fee agreement so prejudices the fairness of the litigation that it requires exclusion of the im- properly compensated witness’s testimony. Murray v. Just In Case Bus. Lighthouse, 2016 CO 47M, 374 P.3d 443. Calling a witness who was testifying in exchange for a contingency fee is contrary to section (b) of this rule. Just in Case Bus. Lighthouse v. Murray, 2013 COA 112M, 383 P.3d 1, aff’d, 2016 CO 47M, 374 P.3d 443. Expressions of personal opinion, personal knowledge, or inflammatory comments vio- late ethical standards. A prosecutor cannot communicate his or her opinion on the truth or falsity of witness testimony during final argu- ment. The use of any form of the word ‘‘lie’’ is improper. However, an attorney may argue from reasonable inferences anchored in the facts in evidence about the truthfulness of a witness’s testimony. Domingo-Gomez v. People, 125 P.3d 1043 (Colo. 2005); Crider v. People, 186 P.3d 39 (Colo. 2008). Conduct sufficient to satisfy the elements of § 18-8-707 (1)(a) and (1)(c) adversely re- flects on attorney’s fitness as a lawyer in contravention of this rule. People v. Olson, 470 P.3d 789 (Colo. O.P .D.J. 2016). Attorney violated section (c) when he knowingly violated orders of Colorado su- preme court suspending him from practice of law for failing to comply with continuing legal education (CLE) requirements and for failing to pay attorney registration fees. People v. Swarts, 239 P.3d 441 (Colo. O.P .D.J. 2010). Thirty-day suspension, petition for rein- statement requirement, and requirement of payment of costs of prior disciplinary pro- ceedings justified where aggravating factors in- clude attorney’s previous public censure, re- fusal to acknowledge the wrongfulness of his conduct, substantial experience in the practice of law, and indifference to making restitution. In re Bauder, 980 P.2d 507 (Colo. 1999). Ninety-day suspension justified where at- torney’s failure to respond to discovery re- quests resulted in default and entry of judg- ment against client for $816,613. People v. Clark, 927 P.2d 838 (Colo. 1996). Ninety-day suspension and order of resti- tution as a condition of reinstatement was justified where attorney failed to pay court-or- dered award of attorney’s fees resulting from his filing of a frivolous motion, without regard to whether this debt was subsequently dis- charged in attorney’s bankruptcy proceedings. People v. Huntzinger, 967 P.2d 160 (Colo. 1998). Attorney who knowingly violated rule but without intent to deceive court is justifiably sanctioned. People v. Trogani, 203 P.3d 643 (Colo. O.P .D.J. 2008). Attorney conduct violating this rule, in conjunction with other rules, sufficient to justify suspension when violation did not arise from neglect or willingness to take advantage of client’s vulnerability and is mitigated by her inexperience in the practice of law, her lack of any prior disciplinary record, the fact that she had already been held in contempt and punished by the district court, and the fact that there is no suggestion of selfish motivation. Attorney’s failure to appreciate the serious nature of con- duct and the jurisdiction of the hearing board to discipline her is a serious matter meriting a period of suspension and a redetermination of her fitness before being permitted to practice law again. In re Roose, 69 P.3d 43 (Colo.), cert. denied, 540 U.S. 1053 (2003). Suspension of one year and one day, with three months served and the remainder stayed upon the successful completion of a two-year period of probation with conditions appropriate for attorney who was administra- tively suspended from the practice of law, ac- cepted a client matter, settled the matter, depos- iting the settlement funds directly into his operating account and thus commingling his personal funds with those of his client and of third-party lien holders. People v. Park, 478 P.3d 259 (Colo. O.P .D.J. 2020). Suspension of one year and one day appro- priate when attorney failed to comply with court orders applicable to monthly spousal sup- port and refused to produce required financial disclosures in his dissolution of marriage case. People v. McQuitty, 371 P.3d 279 (Colo. O.P .D.J. 2016). Suspension for three years appropriate when attorney circumvented proper channels for the adoption of a child by falsely listing her own husband as the birth father on the baby’s birth certificate, counseled her husband to en- gage in fraudulent conduct, and provided false information on a petition for stepparent adop- tion. People v. Ritland, 327 P.3d 914 (Colo. O.P .D.J. 2014). Three-year suspension appropriate for at- torney who repeatedly violated a protection or- der, committed a physical assault, and carried out a retributive campaign of emotional harass- ment against a vulnerable victim. People v. Saxon, 470 P.3d 927 (Colo. O.P .D.J. 2016). Attorney conduct violating this rule, in conjunction with other rules, sufficient to justify disbarment when attorney failed to comply with court orders applicable to his child support payments until after contempt citation was issued and attorney was ordered to report to jail to begin serving his sentence, and also com- mitted numerous other violations consisting of knowingly commingling and misappropriating clients’ funds, and neglecting multiple cases resulting in the entry of default judgments against attorney’s clients. People v. Gonzalez, 967 P.2d 156 (Colo. 1998). Conduct violating this rule in conjunction with other disciplinary rules, where mitigat- ing factors were present, warrants public censure. People v. Davis, 950 P.2d 596 (Colo. 1998). Conduct violating this rule in conjunction with other disciplinary rules is sufficient to justify suspension. People v. Barr, 855 P.2d 1386 (Colo. 1993); People v. Babinski, 951 P.2d 1240 (Colo. 1998); People v. Blunt, 952 P.2d 356 (Colo. 1998); People v. Hanks, 967 P.2d 144 (Colo. 1998); People v. Harding, 967 P.2d 153 (Colo. 1998); In re Demaray, 8 P.3d 427 (Colo. 1999); In re Fischer, 89 P.3d 817 (Colo. 2004); People v. Edwards, 201 P.3d 555 (Colo. 2008); People v. Trogani, 203 P.3d 643 (Colo. O.P .D.J. 2008); People v. Maynard, 238 P.3d 672 (Colo. O.P .D.J. 2009); People v. McNamara, 275 P.3d 792 (Colo. O.P .D.J. 2011); People v. Duggan, 282 P.3d 534 (Colo. O.P .D.J. 2012); People v. V erce, 286 P.3d 1107 (Colo. O.P .D.J. 2012); People v. Head, 332 P.3d 117 (Colo. O.P .D.J. 2013); People v. Quigley, 359 P.3d 1045 (Colo. O.P .D.J. 2015); People v. Sny- der, 418 P.3d 550 (Colo. O.P .D.J. 2018); People v. Bernal, 452 P.3d 270 (Colo. O.P .D.J. 2019); People v. Lindquist, 470 P.3d 961 (Colo. O.P .D.J. 2016); People v. Sanders, 470 P.3d 978 (Colo. O.P .D.J. 2016); People v. Condon, 470 P.3d 1025 (Colo. O.P .D.J. 2016); People v. Spurlock, 470 P.3d 712 (Colo. O.P .D.J. 2017); People v. Layton, 494 P.3d 693 (Colo. O.P .D.J. 2021). Conduct violating this rule sufficient to justify suspension. People v. Rosenfeld, 452 P.3d 230 (Colo. O.P .D.J. 2019). Conduct violating this rule in conjunction with other disciplinary rules is sufficient to justify disbarment. People v. Singer, 955 P.2d 1005 (Colo. 1998); In re Hugen, 973 P.2d 1267 (Colo. 1999); People v. Mason, 212 P.3d 141 (Colo. O.P .D.J. 2009); People v. Zodrow, 276 P.3d 113 (Colo. O.P .D.J. 2011); People v. Kolhouse, 309 P.3d 963 (Colo. O.P .D.J. 2013); People v. Randolph, 310 P.3d 293 (Colo. O.P .D.J. 2013); People v. McNamara, 311 P.3d 622 (Colo. O.P .D.J. 2013); People v. Ross, 350 P.3d 327 (Colo. O.P .D.J. 2015); People v. Doherty, 354 P.3d 1150 (Colo. O.P .D.J. 2015); People v. Kanwal, 357 P.3d 1236 (Colo. O.P .D.J. 2015); People v. Carrigan, 358 P.3d 650 (Colo. O.P .D.J. 2015); People v. Pruit, 452 P.3d 259 (Colo. O.P .D.J. 2019); People v. Wil- liamson, 470 P.3d 745 (Colo. O.P .D.J. 2016); People v. Zimmerman, 470 P.3d 827 (Colo. O.P .D.J. 2016); People v. Adams, 470 P.3d 952 (Colo. O.P .D.J. 2016); People v. Carlson, 470 P.3d 1016 (Colo. O.P .D.J. 2016); People v. Breuer, 470 P.3d 706 (Colo. O.P .D.J. 2017); People v. Ward, 470 P.3d 1053 (Colo. O.P .D.J. 2017); People v. Beale, 470 P.3d 1070 (Colo. O.P .D.J. 2017); People v. Heupel, 470 P.3d 1101 (Colo. O.P .D.J. 2017). Cases Decided Under Former DR 7-104. Rule held inapplicable to district attor- ney’s communications with defendant when communications are unrelated to pending charges for which defendant had retained coun- sel. People v. Hyun Soo Son, 723 P.2d 1337 (Colo. 1986). Evidence sufficient to justify suspension from the practice of law. People v. Belfor, 197 Colo. 223, 591 P.2d 585 (1979); People v. Zinn, 746 P.2d 970 (Colo. 1987). Conduct violating this rule in conjunction with other disciplinary rules is sufficient to justify suspension. People v. Crews, 901 P.2d 472 (Colo. 1995). Applied in People ex rel. MacFarlane v. Boyls, 197 Colo. 242, 591 P.2d 1315 (1979); In re East Nat’l Bank, 517 F. Supp. 1061 (D. Colo. 1981).