Page 219 - 2021 Detective Startup Training CIDI

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 to prosecutors and other lawyers involved in enforcing

criminal 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 Colo.
RPC 4.2 to their contacts with parties known to be represented by counsel during criminal and

civil regulatory enforcement proceedings.

Syllabus

Established case law and the Colorado Rules 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.
Analysis
Colo. RPC 4.2, entitled “Communications with Person Represented by Counsel,” governs
lawyers’ ex parte communications with parties represented by counsel and provides:

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 generally applies if (1) the person has retained a lawyer or obtained court appointed
counsel, (2) the representation concerns the subject matter in question, and (3) the opposing
lawyer “knows” the person is represented by counsel concerning the subject matter of the
communication. See generally People v. Bennett, 810 P.2d 661, 664 (Colo. 1991) (describing

conditions in which attorney–client relationship exists); People v. Morley, 725 P.2d 510, 517-18
(Colo. 1986) (same); Klancke v. Smith, 829 P.2d 464, 466 (Colo.App. 1991) (same). As
explained in Comment [8] to Colo. RPC 4.2, the opposing lawyer is required to have actual

knowledge that the person is represented, but the opposing lawyer “cannot evade the
requirement of obtaining the consent of counsel by closing eyes to the obvious.”