Ezel / Ethics Opinions / COBAR

When could Colorado prosecutors or government lawyers communicate with represented people during criminal or civil enforcement investigations?

Short answer The revised opinion permitted contacts during the investigative stage when authorized by law and generally prohibited them after formal adversarial proceedings began. It identified limited exceptions for consent, process, new crimes, representation checks, and some imminent-safety situations.
Bar
COBAR
Issued
July 15, 1994
Source
View Original PDF

Apply this to your situation

This page answers the general question as of 1994. Ask about yours and see what the current Colorado Rules of Professional Conduct say for your facts, with citations.

Disclaimer: Advisory only. Not binding precedent.
About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked on this page as a PDF) is the authoritative source for any reliance.
View original ethics opinion (PDF)

Plain-English summary

Opinion 96 distinguished investigation from formal proceedings. During a criminal or civil regulatory investigation into possible unlawful conduct, it concluded that a prosecutor or government lawyer could communicate, or cause another to communicate, with a represented person because legitimate investigative activity was authorized by law. Permitted techniques included interviews, undercover activity, and observation before arrest, indictment, or commencement of civil enforcement proceedings, subject to constitutional limits and the lawyer's personal prohibition on deceit under Rule 8.4(c).

After Fifth and Sixth Amendment rights attached in a criminal matter, the opinion concluded that a lawyer could not direct or approve police or informant contacts designed to elicit information when the same conduct would violate those constitutional protections. It identified exceptions for determining whether counsel existed, obtaining counsel's consent, using discovery or judicial process, investigating separate or continuing criminal activity, and responding to some imminent threats to life or safety when the communication was reasonably necessary.

The opinion treated “authorized by law” as authorization grounded in legislation, valid administrative rules, judicial decisions, and acts necessary to carry out a public official's assigned duties. It cautioned that prosecutors could not overstep that authority and, when circumstances permitted, should seek a court order before contact in obstruction or public-safety situations.

Currency note

This opinion was originally issued in 1994 and revised in 2012 after Colorado's 2008 revisions to the Rules of Professional Conduct. Its analysis depended on then-current constitutional doctrine, enforcement statutes, and Rule 4.2. Later cases, rule amendments, statutes, or opinions may have changed the boundaries. Treat this page as historical context and verify current authority before relying on a specific investigative contact.

Common questions

Q: Did Rule 4.2 apply before arrest, indictment, or a civil enforcement filing?

A: The opinion generally concluded that authorized criminal and civil regulatory investigative contacts were permitted before formal adversarial proceedings began.

Q: Could a prosecutor personally use deceit during the investigation?

A: No. The opinion stated that a prosecutor or government lawyer could not personally engage in deceit or misrepresent the lawyer's role, citing In re Pautler and Rule 8.4(c).

Q: Were contacts always barred after charges were filed?

A: No. The opinion listed exceptions, including counsel's consent, discovery or judicial process, investigation of separate or continuing criminal activity, checking representation, and limited imminent-safety situations.

Q: What made an investigative contact “authorized by law”?

A: The opinion looked to statutes, valid regulations, judicial decisions, and acts necessary to carry out duties expressly assigned to prosecutors and other public officials.

Background and rules framework

The opinion primarily interpreted Colorado RPC 4.2 and its “authorized by law” exception, which it described as substantially identical to ABA Model Rule 4.2. It also applied Rules 4.4(a), 8.4(a), and 8.4(c), along with Fifth and Sixth Amendment restrictions after custodial interrogation or formal adversarial proceedings began.

Citations and references

Rules of Professional Conduct:

  • Colo. RPC 4.2 / ABA Model Rule 4.2 (communication with a represented person and authorization by law)
  • Colo. RPC 4.4(a), 8.4(a), and 8.4(c) (third-person rights, indirect violations, and deceit)

Statutes:

  • C.R.S. §§ 20-1-102, 20-1-106, 20-1-106.1, and 20-1-209 (prosecutorial and investigative duties)
  • C.R.S. § 16-2.5-132 (district attorneys as peace officers)
  • 28 U.S.C. § 547 (federal prosecutorial duties)

Cases:

  • United States v. Ryans, 903 F.2d 731 (10th Cir. 1990), pre-indictment informant contact
  • In re Pautler, 47 P.3d 1175 (Colo. 2002), prosecutor's personal deceit
  • People v. Buckallew, 848 P.2d 904 (Colo. 1993), acts authorized by law for public servants
  • Massiah v. United States, 377 U.S. 201 (1964), post-charge elicitation of statements

Other opinions cited:

  • ABA Formal Opinion 95-396: communications with represented persons
  • CBA Formal Opinions 69 and 93: authorization by law and government contacts

See also

Source

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