ANNOTATIONSSource:
Comment amended and adopted June 17, 1999, effective July 1, 1999.
COMMENT
This Rule does not prohibit communication with a party, or an
employee or agent of a party, concerning matters outside the
representation. For example, the existence of a controversy between a
government agency and a private party, or between two organizations,
does not prohibit a lawyer for either from communicating with nonlawyer
representatives of the other regarding a separate matter. Also, parties
to a matter may communicate directly with each other and a lawyer having
independent justification for communicating with the other party is
permitted to do so. Communications authorized by law include, for
example, the right of a party to a controversy with a government agency
to speak with government officials about the matter.
In the case of an organization, this Rule prohibits communications
by a lawyer for one party concerning the matter in representation with
persons having a managerial responsibility on behalf of the
organization, and with any other person whose act or omission in
connection with that matter may be imputed to the organization for the
purposes of civil or criminal liability or whose statement may
constitute an admission on the part of the organization. If an agent or
employee of the organization is represented in the matter by his or her
own counsel, the consent by that counsel to a communication will be
sufficient for purposes of this Rule. Compare Rule 3.4(f).
This rule also covers any person, whether or not a party to a
formal proceeding, who is represented by counsel concerning the matter
in question.
A pro se party to whom limited representation has been provided in accordance with
C.R.C.P. 11(b), or C.R.C.P. 311(b), and Colo.RPC 1.2 is considered to be unrepresented for
purposes of this Rule unless the lawyer has knowledge to the contrary.
COMMITTEE COMMENT
This Rule is proposed as adopted by the ABA, and is essentially the same as
DR 7-104(A) of the Code.
ANNOTATION
Law reviews. For formal opinion of the Colorado Bar Association on Ex
Parte Contacts with Government Officials, see 23 Colo. Law. 329 (1994).
For formal opinion of the Colorado Bar Association on Ex Parte Communications
With Represented Persons During Criminal and Civil Regulatory/Investigations
and Proceedings, see 23 Colo. Law. 2297 (1994).
For article, "Discrete Task Representation a/k/a Unbundled Legal Services", see 29 Colo.
Law. 5 (January 2000).
Annotator's note.
Rule 4.2 is similar to DR 7-104 as it
existed prior to the 1992 repeal and reenactment of the Code of
Professional Responsibility.
Relevant cases construing that provision have been included in the annotations
to Rule 3.4.
The protections of this rule attach only once an "adversarial
relationship" sufficient to trigger an organization's right to counsel
arises. Johnson v. Cadillac Plastic Group, Inc., 930 F. Supp. 1437 (D.
Colo. 1996).
The fact that an employee is a management level employee alone
does not make him a "party" for purposes of this rule. Johnson v. Cadillac
Plastic Group, Inc., 930 F. Supp. 1437 (D. Colo. 1996).
Public censure was warranted for attorney who prepared motions to
dismiss for his client's wife to sign when proceedings had been brought by
the
client's wife against the client and the client's wife was represented by
counsel and was not advised that she should contact her own lawyer before
signing the motions, nor asked if she wished to discuss the motions with her
lawyer before signing. Three letters of admonition for unrelated misconduct
also were an aggravating factor for purposes of determining the appropriate
level of discipline. People v. McCray, 926 P.2d 578 (Colo. 1996).
Thirty-day suspension warranted where lawyer, who represented an
individual accused of first-degree murder, communicated with co-defendant
who also
was charged with first-degree murder and whose interests were adverse to
the lawyer's
client, without the knowledge or consent of the co-defendant's lawyers.
The potential for
harm was high in a first-degree murder case and the number of unauthorized
contacts
demonstrated more than negligence on the lawyer's part. People v. DeLoach,
944 P.2d
522 (Colo. 1997).
Conduct violating this rule in conjunction with other
disciplinary rules is sufficient to justify suspension.
People v. Crews, 901 P.2d 472 (Colo. 1995);
People v. Wotan, 944 P.2d 1257 (Colo. 1997);
In re Tolley, 975 P.2d 1115 (Colo. 1999).
|
