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Abstract 96/97-18

Summary of Facts Provided

Attorney A represents defendant, who is involved in a land dispute with plaintiff. Prior to a lawsuit being filed, plaintiff invited defendant to a meeting with plaintiff and plaintiff's attorney. Attorney A believes that plaintiff's attorney knew that attorney A represented defendant in the matter. No agreement was reached at the meeting and plaintiff then filed the lawsuit. At a deposition, some on-the-record negotiations occurred between plaintiff, plaintiff's attorney and defendant. Attorney A stopped the discussions and advised that any negotiations should take place in a different setting. After the deposition had concluded, attorney A discovered plaintiff's attorney negotiating with defendant in the lobby without attorney A's participation. When attorney A asked the attorney to discontinue such discussions, plaintiff's attorney responded that he was "merely continuing the negotiations that had begun during the deposition." Attorney A believes that plaintiff's attorney is unaware of the provisions of Colorado Rule 4.2 which precludes an attorney from communicating with a party about a matter in which the party is represented by an attorney unless the party's attorney has given permission for such communication or such communication is otherwise authorized by law.

Issues and Conclusions

May attorney A notify plaintiff's attorney of the restrictions of Colorado Rule 4.2 and advise that the attorney's communications with attorney A's client are improper?

Attorney A may notify opposing counsel of the restrictions in Colorado Rule 4.2 and of the fact that opposing counsel may be violating the rule, but the inquiring attorney should avoid stating that opposing counsel's actions are in fact a violation of the rule because this is a determination to be made by other authorities. While Colorado Rule 4.5 prohibits threats of disciplinary charges to obtain an advantage in a civil matter, there is a distinction between threatening someone with a grievance and notifying someone that his or her conduct may violate a rule or statute. Many violations can be eliminated, rectified or minimized if a lawyer is notified of a rule the lawyer may be violating and there is a frank dialogue among the participants to the dispute. Because a disciplinary counsel has the charging authority as to whether conduct has violated a disciplinary rule, the opposing attorney should be told only that the attorney's actions may be in violation of the rule.