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.
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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.
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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.
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