Colo. RPC 4.2

History

Source: Comment amended and adopted June 17, 1999, effective July 1, 1999; entire Appendix repealed and readopted April 12, 2007, effective January 1, 2008. COMMENT [1] This Rule contributes to the proper functioning of the legal system by protecting a person who has chosen to be represented by a lawyer in a matter against possible overreaching by other lawyers who are participating in the matter, interference by those lawyers with the client-lawyer relationship and the uncounselled disclosure of information relating to the repre- sentation. [2] This Rule applies to communications with any person who is represented by counsel concerning the matter to which the communica- tion relates. [3] The Rule applies even though the rep- resented person initiates or consents to the com- munication. A lawyer must immediately termi- nate communication with a person if, after commencing communication, the lawyer learns that person is one with whom communication is not permitted by this Rule. [4] This Rule does not prohibit communi- cation with a represented person, or an em- ployee or agent of such a person, concerning matters outside the representation. For example, the existence of a controversy between a gov- ernment agency and a private party, or between two organizations, does not prohibit a lawyer for either from communicating with nonlawyer representatives of the other regarding a separate matter. Nor does this Rule preclude communi- cation with a represented person who is seeking advice from a lawyer who is not otherwise representing a client in the matter. A lawyer may not make a communication prohibited by this Rule through the acts of another. See Rule 8.4(a). Parties to a matter may communicate directly with each other, and a lawyer is not prohibited from advising a client concerning a communication that the client is legally entitled to make. Also, a lawyer having independent justification or legal authorization for commu- nicating with a represented person, such as a contractually-based right or obligation to give notice, is permitted to do so. [5] Communications authorized by law may include communications by a lawyer on behalf of a client who is exercising a constitu- tional or other legal right to communicate with the government. Communications authorized by law may also include investigative activities of lawyers representing governmental entities, di- rectly or through investigative agents, prior to the commencement of criminal or civil enforce- ment proceedings. When communicating with the accused in a criminal matter, a government lawyer must comply with this Rule in addition to honoring the constitutional rights of the ac- cused. The fact that a communication does not violate a state or federal constitutional right is insufficient to establish that the communication is permissible under this Rule. [6] A lawyer who is uncertain whether a communication with a represented person is permissible may seek a court order. A lawyer may also seek a court order in exceptional cir- cumstances to authorize a communication that would otherwise be prohibited by this Rule, for example, where communication with a person represented by counsel is necessary to avoid reasonably certain injury. [7] In the case of a represented organiza- tion, this Rule prohibits communications with a constituent of the organization who supervises, directs or regularly consults with the organiza- tion’s lawyer concerning the matter or has au- thority to obligate the organization with respect to the matter or whose act or omission in con- nection with the matter may be imputed to the organization for purposes of civil or criminal liability. Consent of the organization’s lawyer is not required for communication with a former constituent. If a constituent of the organization is represented in the matter by his or her own counsel, the consent by that counsel to a com- munication will be sufficient for purposes of this Rule. Compare Rule 3.4(f). In communicat- ing with a current or former constituent of an organization, a lawyer must not use methods of obtaining evidence that violate the legal rights of the organization. See Rule 4.4. [8] The prohibition on communications with a represented person only applies in cir- cumstances where the lawyer knows that the person is in fact represented in the matter to be discussed. This means that the lawyer has actual knowledge of the fact of the representation; but such actual knowledge may be inferred from the circumstances. See Rule 1.0(f). Thus, the lawyer cannot evade the requirement of obtain- ing the consent of counsel by closing eyes to the obvious. [9] In the event the person with whom the lawyer communicates is not known to be repre- sented by counsel in the matter, the lawyer’s communications are subject to Rule 4.3. [9A] A pro se party to whom limited repre- sentation has been provided in accordance with C.R.C.P. 11(b) or C.R.C.P. 311(b), and Rule 1.2, is considered to be unrepresented for purposes of this Rule unless the lawyer has knowledge to the contrary. ANNOTATION Law reviews. For formal opinion of the Colorado Bar Association on Ex Parte Contacts with Government Officials, see 23 Colo. Law. 329 (1994). For formal opinion of the Colorado Bar Association on Ex Parte Communications With Represented Persons During Criminal and Civil Regulatory/Investigations and Proceed- ings, see 23 Colo. Law. 2297 (1994). For ar- ticle, ‘‘Discrete Task Representation a/k/a Un- bundled Legal Services’’, see 29 Colo. Law. 5 (Jan. 2000). For article, ‘‘Policing the Legal System: The Duty to Report Misconduct’’, see 30 Colo. Law. 85 (Sept. 2001). For article, ‘‘Settlement Ethics’’, see 30 Colo. Law. 53 (Dec. 2001). For article, ‘‘Investigative Tactics: They May Be Legal, But Are They Ethical?’’, see 35 Colo. Law. 43 (Jan. 2006). For article, ‘‘The New Rules of Professional Conduct: Sig- nificant Changes for In-House Counsel’’, see 36 Colo. Law. 71 (Nov. 2007). For formal opinion of the Colorado Bar Association on Propriety of Communicating With Employee or Former Em- ployee of an Adverse Party, see 39 Colo. Law. 21 (Oct. 2010). For article, ‘‘Top 10 Things In-House Lawyers Need to Know about Eth- ics’’, see 45 Colo. Law. 59 (July 2016). For article, ‘‘The Ethics of Contacting Witnesses’’, see 46 Colo. Law. 40 (Dec. 2017). Annotator’s note. Rule 4.2 is similar to Rule 4.2 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. The protections of this rule attach only once an ‘‘adversarial relationship’’ sufficient to trigger an organization’s right to counsel arises. Johnson v. Cadillac Plastic Group, Inc., 930 F. Supp. 1437 (D. Colo. 1996). The fact that an employee is a manage- ment level employee alone does not make him a ‘‘party’’ for purposes of this rule. John- son v. Cadillac Plastic Group, Inc., 930 F. Supp. 1437 (D. Colo. 1996). Consent of opposing counsel to direct com- munication with client may be implied, and the scope of that implied consent presents a mixed question of fact and law. Therefore, the hearing board’s conclusions on this issue may be reviewed de novo. Matter of Wollrab, 2018 CO 64, 420 P.3d 960. Attorneys are responsible for ethical viola- tion when their investigator, without the defen- dant’s permission, contacted an employee of the defendant whose statements about the events surrounding a fight may constitute admissions by the defendant. McClelland v. Blazin’ Wings, Inc., 675 F. Supp. 2d 1074 (D. Colo. 2009). This rule does not require any greater or more specific limitations on the communica- tions of government lawyers with suspects, or with indigent suspects in particular, than apply to attorney communications in general. The fact that the defendant was appointed coun- sel in a different matter does not automatically prohibit certain communications with prosecu- tion investigators relating to a different matter. An assessment of compliance with this rule requires facts concerning the matters for which the public defender had already been appointed to represent the defendant and the subject of the subsequent interviews with the investigators. People v. Wright, 196 P.3d 1146 (Colo. 2008). Public censure was warranted for attorney who prepared motions to dismiss for his client’s wife to sign when proceedings had been brought by the client’s wife against the client and the client’s wife was represented by coun- sel and was not advised that she should contact her own lawyer before signing the motions, nor asked if she wished to discuss the motions with her lawyer before signing. Three letters of ad- monition for unrelated misconduct also were an aggravating factor for purposes of determining the appropriate level of discipline. People v. McCray, 926 P.2d 578 (Colo. 1996). Revoking probation and activating suspen- sion appropriate where lawyer purposely ig- nored his obligations under this rule by sending ex parte communications to the clients of an- other lawyer regarding the subject of their rep- resentation. People v. Underhill, 353 P.3d 936 (Colo. O.P .D.J. 2015). Thirty-day suspension warranted where lawyer, who represented an individual accused of first-degree murder, communicated with co- defendant who also was charged with first-de- gree murder and whose interests were adverse to the lawyer’s client, without the knowledge or consent of the co-defendant’s lawyers. The po- tential for harm was high in a first-degree mur- der case and the number of unauthorized con- tacts demonstrated more than negligence on the lawyer’s part. People v. DeLoach, 944 P.2d 522 (Colo. 1997). Conduct violating this rule in conjunction with other disciplinary rules is sufficient to justify suspension. People v. Crews, 901 P.2d 472 (Colo. 1995); People v. Wotan, 944 P.2d 1257 (Colo. 1997); In re Tolley, 975 P.2d 1115 (Colo. 1999).