Colo. Rpc 4.5: the Ethical Prohibition Against Threatening Prosecution - May 2006 - Young Lawyers Division
| Publication year | 2006 |
| Pages | 99 |
| Citation | Vol. 35 No. 5 Pg. 99 |
2006, May, Pg. 99. Colo. RPC 4.5: The Ethical Prohibition Against Threatening Prosecution - May 2006 - Young Lawyers Division
May 2006
Vol. 35, No. 5 [Page 99]
Young Lawyers Division
Eric D. Musselman, Aspen, is an associate attorney at Garfield & Hecht, P.C. - (970) 925-1936, musselman@garfieldhecht.com; Christopher D. Bryan, Basalt, is an associate attorney at Garfield & Hecht, P.C. and Chair-Elect of the Colorado Bar Association Young Lawyers Division - (970) 927-1936, cbryan@garfieldhecht.com. The authors would like to thank the law firm of Garfield & Hecht, P.C. for its generous support and outstanding resources.
Lawyers must balance the desire to serve clients' interests with broader duties to the judicial system and ethical rules governing behavior. New lawyers, eager to prove their zealous advocacy, can run afoul of the Colorado Rules of Professional Conduct ("Colo. RPC" or "Rule"). In civil litigation, lawyers and their clients might seek every possible advantage to favorably resolve their cases. An opposing party's glaring criminal misconduct often is hard to overlook. Sometimes, an opposing party's misconduct provides the tempting opportunity to try to gain the upper hand in litigation. This is the reason for Colo. RPC 4.5, "Threatening Prosecution" - to forbid the use of certain incriminating information to secure an advantage in civil matters.
This article reviews Rule 4.5 and its directives, and presents examples of how attorneys can violate the Rule. The article also discusses how new lawyers can avoid abusing and violating the Rule by always acting in an ethical and professional manner.
Overview of Colo. RPC 4.5
The primary purpose of Rule 4.5 is to ensure that attorneys avoid abusing the judicial process, which "tends to diminish public confidence in our legal system."(fn1) The Colorado Supreme Court has "determined that abuse of the criminal process by lawyers is serious enough to warrant its own rule."(fn2) Rule 4.5(a) provides:
A lawyer shall not threaten to present criminal, administrative or disciplinary charges to obtain an advantage in a civil matter nor shall a lawyer present or participate in presenting criminal, administrative or disciplinary charges solely to obtain an advantage in a civil matter.
Rule 4.5 is intended to be broad. It applies to any "controversy or potential controversy over rights and duties of two or more persons under the law whether or not an action has been commenced."(fn3)
Rule 4.5's Comment distinguishes between threatening to file charges and actually presenting such charges:
Threats to file such charges are prohibited if a purpose is to obtain any advantage in a civil matter while the actual presentation of such charges is proscribed by this rule only if the sole purpose for presenting the charges is to obtain advantage in a civil matter.(fn4)
The purpose of this distinction is to recognize that "abuse of the judicial process is at its greatest when a threat of filing charges is used as a lever to obtain an advantage in a collateral, civil proceeding."(fn5) Such leverage is "either eliminated or greatly reduced" if the charges are actually presented, rather than just threatened.(fn6)
There also is a safe harbor provision in the rule that allows an attorney to be candid about putative violations of the law. This provision states: "It shall not be a violation of Rule 4.5 for a lawyer to notify another person in a civil matter that the lawyer reasonably believes that the other's conduct may violate criminal, administrative or disciplinary rules or statutes."(fn7) Rule 4.5(b) essentially permits attorneys to notify opposing counsel of suspected violations. The rule is consistent with an attorney's duties of candor, diligence, respect, courtesy, cooperation, and competence. An...
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