The Colorado Bar Association's addresses Colorado's Rule 8.4 (c) by issuing Formal Opinion 137. Here's what it means:
By Susanna Speier
Denver Private Investigator Blogger
In May 2019, the Ethics Committee of the Colorado Bar Association (CBA) issued Formal Opinion 137 to address negative ethical ramifications that Rule 8.4 (c) might have. From it's 2017 announcement, apprehensions about the Rule permitting Colorado lawyers to "advise, direct, or supervise others," ---private investigators are one of the three categories of support affiliates specified in the rule-- to participate in lawful investigative activities involving dishonesty, fraud, deceit or misrepresentation.
Concern about the Rule's professional --not to mention ethical-- consequences have prompted anxious conversations and blog posts but Opinion 137 marks Colorado Bar and Ethic's Committee's first official response to 8.4 (c) since the Colorado Supreme Court amended the Colorado Rules of Professional Conduct in 2017.
See also: Chris Wells on Facebook and the Colorado Bar Associations Sock Puppet Prerogative
The Colorado Bar Association's 6,195 word Formal Opinion (which the CBA explicitly states is for advisory purposes only) is not light, late-summer weekend getaway reading material. Slog through the legalese for a comprehensive discussion and analysis of Rule 8.4 (c) and it will deepen your understanding of it's potential impact on your career as a Colorado private investigator.
Formal Opinion 137 also does a great job of differentiating between the different kinds of investigations and how this rule applies to national as well as state cases so you may not emerge from the read feeling rested and recharged however it will deepen your understanding of how issues similar to 8.4 (c) played out in previous discussions involving Ethics Opinion and Treatises.
Formal Opinion 137 also cites relevant Law Review Articles and citations from Practice Guides before concluding with a five page addendum if you haven't gotten enough by then.
See also: Colorado's new misconduct rule: what could the consequences be?
Since September 2017, if you are a private investigator, process server, bail bond recovery agent, skip tracer or surveillance operative, Colorado attorneys have had the legal authority to direct you to commence "engaging in conduct involving dishonesty, fraud, deceit or misrepresentation" if they deem it necessary. In addition to the rule's blatant irreverence for ethical codes that licensed private investigators practicing in the State of Colorado --an industry that includes process servers, skip tracers and bail recovery agents as well as private detectives-- licenses depend on, membership compliance and regulations are also poised to revoke violators. This Rule could therefore impact your future resources as a PI or put you in a position in which you are forced to chose between a client and a license of professional organization if it hasn't already.
If you are you a Colorado lawyer or licensed private detective and your work at a private investigator been impacted by Colo. RPC 8.4(c) following it's adoption by the Colorado Supreme Court in September 2017 we would like to hear your story.
Send us your questions and thoughts on CBA Ethics Opinion 137 and on 8.4(c) You can post responses in the comment and on our Twitter, Facebook and Instagram.
Colorado digital evidence consultant Chris Wells on Facebook and the Colorado Bar Association's sock puppet prerogative
By Susanna Speier
Denver Private Investigator Blogger
To get a second opinion on the stalking suspects safely issue discussed in the previous post, I asked Boulder based Computer and Cell Phone Forensic Examiner, Chris Wells about using
See also: Digital 101 forensics workshops for Denver attorneys and private investigators
Facebook to research suspects and/or persons of interest. Wells concurred with Jones' stipulation adding, "Facebook does not provide a 'who viewed my profile' capability."
See also: Storyful's News Intelligence and Investigative Journalist Kelly Jones talks Stalk Scan for private investigators
Facebook's terms of service explicitly prohibits the creation of a bogus profile. This means, using that fake name, photo and online identity, as private investigators sometimes do, is an ethical violation that could get a firm in hot water during testimony. It could also cost individual investigators their membership to a professional organization. Organizations like World Association of Detectives (WAD), National Association of Legal Investigators Professional Private Investigators (NALI) and the Association of Colorado (PPIAC) [Disclosure: the author of this article is an associate member of the PPIAC] all have ethical codes to help maintain the integrity of a profession that is frequently misrepresented in Hollywood. Section 2 of the PPIAC's code of ethics states, "We will not advertise our work, skill or merit in an unprofessional or misleading fashion and will avoid all conduct or practice likely to discredit or do injury to the dignity and honor of our profession."
"It's easy (though against Facebook policy)" Wells points out as an example, "to create a bogus Facebook profile, and use it to do things anonymously on Facebook. For example, I download a picture of you from the Web, create a 'Susanna Speier' Facebook account using that picture, then start friend'ing people with it."
In addition to violating Facebook policy it would violate Section 2 of the PPIAC code of ethics but not all of Colorado's licensed private investigators have trade organization memberships. To throw yet another monkey wrench into the ethical works, a 2017 regulation protecting Colorado attorneys' authority to "direct advise or supervise others" to, in essence, behave deceitfully. Rule 9.4 section C of the Colorado Bar is, in essence, a sock puppet prerogative.
See also: Colorado's new misconduct rule: what will the consequences be?
A demanding client can direct a Colorado private investigator to create an online decoy profile and use that profile to to obtain information on Facebook that he or she may not otherwise have access to, despite the precarious situation it would put their client and associates in if discovered.
It will be interesting to see whether or not Rule 8.4 section 3 is addressed by Colorado's new Attorney General, Phil Weiser now that the Attorney General responsible for putting it there in 2017, Cynthia Coffman, is out of office.
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