ETHICS REMINDER FROM THE COLORADO U.S. DISTRICT COURT

In a recently published decision, McClelland v. Blazin' Wings, Inc., Case No. 09-cv-01580-CMA-BNB (Dec, 29, 2009), the United States District Court for the District of Colorado gave Colorado attorneys a valuable reminder that their professional responsibilities extent to actions of their agents.

In McClelland, the attorneys for the plaintiff engaged a private investigator to gather facts regarding the case, which arose out of a bar fight at a Buffalo Wild Wings restaurant. The investigator interviewed the bartender on duty on the night in question, but make several mistakes from an ethical perspective: (1) he did not disclose to the bartender that he was working on behalf of the plaintiff; (2) he did not obtain the permission of the defendant's counsel before interviewing the bartender, an employee of the defendant, regarding the circumstances of the fight; and (3) he tape recorded the interview without disclosing that fact to the bartender.

The Court found that plaintiff's counsel committed three ethical violations stemming from the investigator's interview of the bartender. The investigator's conduct is attributed to plaintiff's counsel under Rule 8.4(a) of the Colorado Rules of Professional Conduct ("CRPC"), which prohibits a lawyer from violating the rules "through the acts of another" and attributes the misconduct of an agent to the supervising lawyers.

First, plaintiff's counsel violated CRPC 4.2, which prohibits communicating with an opposing party when that party is represented by counsel, when the investigator contact the bartender, an employee of defendant, without the permission of defendant's counsel. See, Colorado Formal Ethics Opinion 69.

Second, plaintiff's counsel violated CRPC 4.1, which prohibits making a false statement of or failing to disclose a material fact to a third person, when the investigator failed to disclose that he worked for the plaintiff and that the purpose of the interview was to gather facts for the plaintiff in the lawsuit.

Third, plaintiff's counsel violated CRPC 8.4(c), which prohibits "conduct involving dishonesty, fraud, deceit, or misrepresentation," when the investigator recorded the interview without notice or consent. See, Colorado Formal Ethics Opinion 112.

The Court's remedy was to preclude the use of interview in connection with pretrial discovery, but did not preclude the plaintiff from developing the same information in a proper manner.

Although the penalty was not terribly severe in the context of the plaintiff's case, the ruling is certainly a wake up call for attorneys to properly educate and control non-lawyers engaged to work on their cases.

Posted By: Brent W. Houston, Esq.