Formal Opinion No. 96-ex Parte Communications With Represented Persons During Criminal and Civil Regulatory/investigations and Proceedings, Revised
| Publication year | 2012 |
| Pages | 25 |
| Citation | Vol. 41 No. 7 Pg. 25 |
2012, July, Pg. 25. Formal Opinion No. 96-Ex Parte Communications With Represented Persons During Criminal and Civil Regulatory/Investigations and Proceedings, Revised
July 2012
Vol. 41, No. 7 [Page25]
Introduction
Police and other law enforcement agents historically have 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 U.S. 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 lawyers 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 ensure 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 lawyers engaged in criminal and civil regulatory investigations from contacts with persons known to be represented by counsel beyond those restrictions provided for by the U.S. and Colorado Constitutions. The overwhelming preponderance of federal and state court decisions holds that the restriction on contacts with a represented person contained in Rule 4.2 of the Colorado Rules of Professional Conduct (Colorado Rules or Colo. RPC) does not apply during the investigative stage of criminal proceedings and prior to arrest or indictment, but does apply once adversarial proceedings have begun. See United States v. Talao, 222 F.3d 1133, 1138-41 (9th Cir. 2000) (applying California's version of Rule 4.2); United States v. Ryans, 903 F.2d 731, 735-36 (10th Cir.) (discussing cases decided under predecessor rule DR 7-104(A)(1)), cert. denied, 498 U.S. 855 (1990); United States v. Lemonakis, 485 F.2d 941, 955-56 (D.C. Cir. 1973), cert. denied, 415 U.S. 989 (1974); United States v. Grass, 239 F.Supp.2d 535, 539-46 (M.D.Pa. 2003) (applying Pennsylvania's version of Rule 4.2).(fn1) Authorities similarly hold that Rule 4.2's restriction does not apply during the investigative stage of civil enforcement proceedings, but does apply once adversarial proceedings have begun. See Colo. RPC 4.2, Comment [5] (noting that "[c]ommunications authorized by law may also include investigative activities of lawyers representing governmental entities . . . prior to the commencement of . . . civil enforcement proceedings"); United States v. Teeven, 1990 WL 599373 at *2-*4 (D.Del. Sept. 28, 1990) (finding that ex parte interviews by government attorneys conducting civil False Claims Act investigation did not violate Delaware's version of Rule 4.2); ABA Comm. on Ethics and Prof'l Responsibility, Formal Op. 95-396 (1995).
The CBA Ethics Committee (Committee) issued an earlier version of this formal opinion based on DR 7-104(A)(1) of the Colorado Code of Professional Responsibility. The Committee believes that it is appropriate at this time to issue a revised opinion based on the current Colorado Rules and, particularly, on Rule 4.2's use of the term "represented person" rather than "represented party." Because members of the bar relied on an earlier version of this opinion, in large part this opinion tracks the organization of the earlier version. The Committee has removed discussion of issues that were clarified or changed under the Colorado Rules.
Scope
The purpose of this opinion is to provide guidance to lawyers in evaluating the ethical propriety of ex parte communications with persons known to be represented by counsel. The Committee recognizes that there are a variety of strongly held and cogently articulated positions on the application of Colo. RPC 4.2...
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