Review of Ethics Opinion 133

On October 27, 2017, the Colorado Bar Association Ethics Committee adopted Formal Opinion 133, Ethical Duties of a Lawyer who is Party to a Matter Speaking with a Represented Party.

This Opinion considered a lawyer's ethical obligations in a unique factual situation: may a lawyer who is a party to a legal matter discuss the matter with represented party without first obtaining that party’s lawyer’s consent?  In this scenario, the lawyer who is a party to a matter (lawyer/party) can either be pro se or be represented by separate counsel.  The lawyer/party’s ethical obligations with respect to communication with opposing parties turns on this distinction.

The relevant rule is CRPC 4.2, Communication with Persons Represented by Counsel.  The rule states that, “[i]n 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.”  A previous decision by a Colorado Supreme Court Office of the Presiding Disciplinary Judge identified three purposes of the rule: (1) to protect represented persons from overreach by opposing counsel; (2) to protect the attorney-client relationship from interference by opposing counsel; and (3) to reduce the risk that persons might disclose to opposing counsel confidential information harmful to their case.

A lawyer/party may proceed pro se in a legal matter.  In that case, the lawyer is actually acting as their own counsel.  Colorado disciplinary decisions establish that, when a lawyer is pro se, CRPC 4.2 applies to the lawyer’s communication with other parties.  A pro se lawyer will violate CRPC 4.2 by communicating directly with a represented party without their lawyer’s consent.

Conversely, a lawyer/party may be represented by counsel.  Per Opinion 133, “no Colorado decision has directly addressed the second scenario.” The Ethics Committee “concludes that Rule 4.2 does not prohibit a lawyer/party from discussing the matter with a represented adverse party when the lawyer/party is represented by counsel.”

Thus, when a lawyer/party proceeds pro se, CRPC 4.2 prohibits the lawyer from directly communicating with a represented party absent consent of counsel.  When a lawyer is represented in a matter, CRPC 4.2 does not prohibit the lawyer/party from directly communicating with the represented party about the matter.