Cba Ethics Committee Opinion
| Publication year | 1994 |
| Pages | 2297 |
| Citation | Vol. 23 No. 10 Pg. 2297 |
1994, October, Pg. 2297. CBA Ethics Committee Opinion
Police and other law enforcement agents have historically possessed broad powers, within constitutional limits, to investigate alleged violations of criminal and civil regulatory laws. These powers include the authority to conduct pre-arrest and pre-indictment investigations, including undercover operations. During these pre-arrest and pre-indictment investigations, police and other law enforcement agents are entitled to interview witnesses, potential suspects and even the accused if he or she waives his or her constitutional rights to remain silent.
After a person has been taken into custody and/or is charged in an adversarial proceeding, these broad police powers are significantly restricted by the Fifth and Sixth Amendments to the United States Constitution. The Fifth Amendment prohibits law enforcement personnel, in the absence of a waiver, from conducting custodial interrogations of the accused. The Sixth Amendment substantially restricts the ability of law enforcement personnel to communicate ex parte with criminal defendants once adversarial proceedings have been initiated.
In recent years, prosecutors and other attorneys charged with enforcing criminal and civil regulatory laws have begun to play a larger role in pre-arrest and pre-indictment investigations. This trend has been viewed positively by the general public and the bar because of the perception that a lawyer's involvement in a criminal or civil regulatory investigation may help insure that the criminal and/or civil regulatory investigation complies with constitutional constraints, as well as high professional and ethical standards.
This expansion of the traditional prosecutorial responsibility for trying and disposing of cases to organizing and supervising criminal and civil regulatory investigations, however, has created considerable uncertainty in the law as to whether ethical rules of conduct should restrain attorneys engaged in criminal and civil regulatory investigations from contacts with persons known to be represented by counsel beyond those restrictions provided for by the United States and Colorado Constitutions. There is a substantial divergence of opinion over the application to prosecutors of former DR 7-104(A) (1) of the Colorado Code of Professional Responsibility and current Rule 4.2 of the Colorado Rules of Professional Conduct.
The overwhelming preponderance of federal and state court decisions hold that the restriction on contacts with a represented person do not apply during the investigative stage of criminal and civil regulatory enforcement proceedings and prior to arrest or indictment, but do apply once adversarial proceedings have begun. See United States v. Ryan, 903 F.2d. 731 (10th Cir.) cert. denied, 498 U.S. 855 (1990) (discussing cases); United States v. Lemonakis, 485 F.2d 941, 955-56 (DC Cir. 1973), cert. denied, 415 U.S. 989 (1974). Various state bar disciplinary authorities have expressed differing views on the point at which the prohibition on contacts embodied in former DR 7-104 and current Rule 4.2 and their analogs should apply to criminal enforcement proceedings and many law review articles deal with some aspect of the problems related to communications between prosecutors and targets of criminal or civil regulatory enforcement proceedings.(fn1)
The purpose of this opinion is to provide guidance to attorneys in evaluating the ethical propriety of ex parte communications
with persons known to be represented by counsel. The Ethics Committee ("Committee") recognizes that there are a variety of strongly held and cogently articulated positions on the application of Rule 4.2 to prosecutors and other attorneys involved in enforcing police and regulatory laws. The Committee is aware that as a result of this divergence of opinion, prosecutors and other members of the bar need guidance on the applicability of Rule 4.2 to their contacts with parties known to be represented by counsel during criminal and civil regulatory enforcement proceedings.
Established case law and the Colorado Rules of Professional Conduct permit communications with represented persons during the investigative stage of criminal and civil regulatory enforcement proceedings, and prohibit such communications once formal proceedings have commenced, subject to several well-defined exceptions.
Rule 4.2 of the Colorado Rules of Professional Conduct governs attorneys' ex parte communications with parties represented by counsel. Rule 4.2 --- Communications with Person Represented by Counsel, provides:
In representing a client, a lawyer should not communicate about the subject of the representation with a party the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law.
An individual is generally considered to be a party represented by a lawyer if (1) the person has retained an attorney or obtained court appointed counsel, (2) the representation concerns the subject matter in question, and (3) the opposing attorney "knows" the person is represented by counsel concerning the subject matter of the communication. See generally, People v. Bennett, 810 P.2d 661 (Colo. 1991); Klancke v. Smith, 829 P.2d 464 (Colo.App. 1991); Schmidt v. Frankewich, 819 P.2d 1074 (Colo.App. 1991) People v. Morley, 725 P.2d 510 (Colo. 1986).
The terms "party" and "represented" have been construed broadly to conform to the drafters intent and purpose for the rule. See U.S. v. Jamil, 546 F. Supp. 646 (D.C. E.N.Y. 1982), rev'd on other grounds, 707 F.2d 638 (2d Cir. 1983)(person who retains counsel as protection against grand jury investigation is a...
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