Can a Colorado lawyer advise or supervise investigators, clients, or police who use deception in a lawful investigation, and can the lawyer do it personally?

Plain-English summary

Opinion 137 (adopted May 2019) interprets the September 2017 amendment to Colo. RPC 8.4(c), which added an exception providing that a lawyer "may advise, direct, or supervise others, including clients, law enforcement officers, or investigators, who participate in lawful investigative activities," even where those activities involve dishonesty, fraud, deceit, or misrepresentation. No comment accompanied the amendment, so the opinion supplies guidance on its scope and effect.

The Committee draws a clear line. Amended Rule 8.4(c) permits a lawyer to advise, direct, or supervise others' deception in lawful investigations, but it does not permit the lawyer to personally participate in dishonesty, fraud, deceit, or misrepresentation, regardless of the activity's lawfulness; the result in In re Pautler (disciplining a prosecutor who personally impersonated a public defender) is unchanged. Whether an investigative activity is "lawful" is a mixed question of fact and law that a lawyer must research case by case. The opinion offers guiding principles: hiring investigators to pose as ordinary customers or consumers to detect ongoing wrongdoing (discrimination, trademark infringement, consumer fraud) is generally proper; investigators may not induce or coerce a target into saying or doing something the target otherwise would not, but should only reproduce usual behavior; deception must not impede a lawful investigation; and a lawyer may never affirmatively mislead a court or tribunal (Rule 3.3). It then walks through related rules, concluding that Rules 4.1, 4.3, 3.3, and the court-candor duties are unaffected because they govern the lawyer's personal conduct, while Rule 8.4(c) provides a narrow controlling exception to the anti-circumvention rule (8.4(a)), to Rule 5.3 supervision of nonlawyers, and to Rule 1.2(d)'s bar on counseling fraudulent (not criminal) conduct, and that Rule 4.2's "authorized by law" exception may encompass lawful investigative activity. Illustrations cover supervising undercover law-enforcement and pretext investigations, advising clients about lawful surreptitious recordings (lawful for a one-party nonlawyer in Colorado, though not for a lawyer personally), and gathering information from public records and restricted social-media profiles.

Currency note

This opinion was issued in 2019 and interprets the September 2017 amendment to Colo. RPC 8.4(c), which remains the governing rule. Because the opinion turns on the precise text of amended Rule 8.4(c) and related rules, confirm the current rule text and any later opinions before relying on a specific conclusion, particularly for surreptitious recording, social-media investigation, and contact with represented persons, where the law continues to develop.

In practice

Under Colo. RPC 8.4(c) as amended in 2017 and addressed in this opinion, the analysis turns on two questions: is the investigative activity lawful, and is the lawyer personally engaging in the deception or only advising, directing, or supervising others. The opinion holds that a lawyer may advise, direct, or supervise clients, investigators, and law enforcement who use deception in a lawful investigation, but may not personally participate in dishonest, fraudulent, or deceitful conduct, and may never mislead a tribunal. It treats "lawful" as the controlling, fact-specific limit and identifies factors courts weigh, such as whether the investigation merely reproduces the target's usual behavior, gathers publicly available information, targets suspected wrongdoers, and has been reviewed by a supervising lawyer. Because the opinion's conclusions depend on the current text of Rule 8.4(c) and related rules, confirm the rules and check for later guidance before relying on a specific application.

Common questions

Q: Can a Colorado lawyer supervise an undercover or pretext investigation that uses deception?

A: Yes, if the investigation is lawful, under this opinion. The Committee concludes amended Rule 8.4(c) lets a lawyer advise, direct, or supervise clients, investigators, and law enforcement who use deception in lawful investigative activities.

Q: Can the lawyer personally pose as someone else or lie during the investigation?

A: No, under this opinion. The Committee concludes the amendment did not change the bar on a lawyer personally engaging in dishonesty, fraud, deceit, or misrepresentation, citing In re Pautler.

Q: Can a lawyer tell a client it is okay to secretly record a conversation?

A: In Colorado, generally yes for a one-party recording, under this opinion. The Committee concludes that a nonlawyer client may lawfully record a conversation to which the client is a party, and the lawyer may advise or supervise that, while cautioning the client not to violate wiretap, eavesdropping, or computer-crime statutes; a lawyer still may not personally make such a recording.

Q: Does Rule 8.4(c) let a lawyer have an investigator "friend" someone on social media under a false identity?

A: It can, for a lawful investigation, under this opinion. The Committee concludes a lawyer may advise, direct, or supervise an investigator's use of deceptive means to access a restricted social-media profile in the course of a lawful investigative activity, so long as the lawyer does not personally engage in the deception (citing CBA Formal Op. 127).

Background and rules framework

The opinion interprets the 2017 amendment to Colo. RPC 8.4(c) (misconduct involving dishonesty, with the new investigative-activities exception) and analyzes its effect on Rules 8.4(a), 4.1, 4.2, 4.3, 4.4(a), 5.3, 1.2(d), and 3.3. The corresponding Model Rules are 8.4, 5.3, and 4.2, among others. The Committee relied on its own Opinions 96 (ex parte contact in investigations), 112 (surreptitious recording), and 127 (social media for investigations).

Citations and references

Rules of Professional Conduct:

• Colo. RPC 8.4(c) / Model Rule 8.4 (dishonesty; the investigative-activities exception)
• Colo. RPC 5.3 / Model Rule 5.3 (responsibilities regarding nonlawyer assistants)
• Colo. RPC 4.2 / Model Rule 4.2 (communication with represented persons; "authorized by law")
• Colo. RPC 1.2(d), 3.3, 4.1 / Model Rules 1.2, 3.3, 4.1 (scope; candor; truthfulness)

Cases:

• In re Pautler, 47 P.3d 1175 (Colo. 2002) (a lawyer may not personally engage in deceit, even in investigations)
• People v. Reichman, 819 P.2d 1035 (Colo. 1991) (a lawyer may not file false charges to bolster an investigation)

Other opinions cited:

• CBA Formal Opinion 96 (ex parte communications in investigations)
• CBA Formal Opinion 112 (surreptitious recording)
• CBA Formal Opinion 127 (use of social media for investigative purposes)

See also

• CBA Formal Op. 112: Surreptitious Recording of Conversations
• CBA Formal Op. 48: Representing a Public Body and a Private Client

Source

• Landing page: https://www.cobar.org/ethicsopinions
• Original PDF: https://www.cobar.org/Portals/COBAR/Repository/committees/Ethics/137.pdf?ver=2019-06-10-131915-283