Chapter 27 - § 27.4 • COMMUNICATION
| Jurisdiction | Colorado |
§ 27.4.1—Communication With Persons Other Than The Client
Communications with Persons Represented by Counsel
Colo. RPC 4.2 states:
In representing a client, a lawyer shall not communicate about the subject of the representation with a person 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 or a court order.
The Rule prohibits direct communication between a lawyer and another party who is represented in a transaction or litigation, unless that party's lawyer consents. Where the party involved is a state or federal agency, which is often the case in a water law matter, this Rule can give rise to confusion about circumstances in which communication with a public official, public body, or government agency is "authorized by law" or whether the government agency's lawyer must consent.
If the government agency is a represented party in a case or transaction, the lawyer should seek permission of the agency's lawyer before speaking with an agency employee about the case or transaction. In water court matters, the state and division engineers provide consultation to the parties and the water referee, but if they have not filed a statement of opposition, they are not represented by counsel in the case.57 Similarly, the Office of the State Engineer may process a substitute water supply plan request filed in connection with a water court case that the state engineer did not oppose.
Communications with the state or division engineer, or their staff, thus appear to be communications "authorized by law" that do not require permission of the Attorney General's Office, providing the engineers are not a party to the case. However, if the state or division engineer subsequently seeks to intervene in the case, or protests a referee's ruling, further communication should only be with counsel's permission, unless the matter is outside the scope of representation or "on behalf of a client who is exercising a constitutional or other legal right to communicate with the government."58
§ 27.4.2—Communication With Judges, Referees, And Experts
Candor Toward the Tribunal
A lawyer must be truthful in communications with tribunals, including courts and administrative agencies. Colo. RPC 3.3(a) provides that a lawyer shall not knowingly make a false statement of material fact or law to a tribunal, fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer, fail to disclose legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client not disclosed by the opposing party, or offer evidence the lawyer knows to be false. Moreover, Colo. RPC 3.3(d) requires a lawyer in an ex parte proceeding to inform the tribunal of all material facts known to the lawyer that will enable the tribunal to make an informed judgment, regardless of whether the facts are adverse.
If a lawyer offers material evidence and later learns that the evidence is...
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