Chapter 21 - § 21.7 • LAWYER'S ABILITY TO CONTACT ANOTHER PARTY'S PRESENT AND FORMER EMPLOYEES

• Jurisdiction: Colorado

§ 21.7 • LAWYER'S ABILITY TO CONTACT ANOTHER PARTY'S PRESENT AND FORMER EMPLOYEES

Investigating the causes of environmental contamination or gathering evidence of liability under the environmental laws may require inquiry into events that took place decades earlier. Former employees or agents of current or former owners and operators of the property may have relevant information that relates to the current dispute.¹¹⁰

The Colorado Rules of Professional Conduct do not directly address the issue of contacting former employees of actual or potential defendants in environmental enforcement actions or other environmental disputes. However, several Colorado Rules of Professional Conduct provide guidance. Rule 4.1 provides:

In the course of representing a client a lawyer shall not knowingly:
(a) make a false statement of material fact or law to a third person; or

(b) fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 1.6.

Similarly, Colo. RPC 8.4 defines "professional misconduct" and includes the following within its definition: "engag[ing] in conduct involving dishonesty, fraud, deceit or misrepresentation."¹¹¹ Dishonesty and misrepresentation can give rise to disciplinary action against the dishonest lawyer.¹¹²

As the foregoing rules make clear, an investigating attorney is under an obligation to tell the truth to third parties as to matters of both law and fact. An attorney may believe that by telling a loyal former employee of a potentially liable party that his or her testimony may cost the former employer money, the former employee may be less cooperative and forthcoming. However, the ethical attorney must, if asked, tell the truth about the factual and legal situation involved in the attorney's investigation.

Additionally, Colo. RPC 4.3 provides:

In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested. When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer's role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding. The lawyer shall not give legal advice to an unrepresented person, other than the advice to secure counsel, if the lawyer knows or reasonably should know that the interests of such a person are or have a reasonable possibility of being in

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