The Colorado Supreme Court is considering a change to Colorado Rule of Professional Conduct 8.4 that is of interest to the IP community. Currently, Rule 8.4(c) provides that it is professional misconduct for a lawyer to “engage in conduct involving dishonesty, fraud, deceit or misrepresentation.” Under the proposed rule change, the rule would be amended such that it would be professional misconduct for a lawyer to “engage in conduct involving dishonesty, fraud, deceit or misrepresentation, except that a lawyer may advise, direct, or supervise others, including clients, law enforcement officers, or investigators, who participate in lawful investigative activities.”
This rule has been of historical interest in the IP community due to the use of “pretexting” to investigate potential infringement of intellectual property rights. “Pretexting” is engaging in undercover activities to explore possible infringement, and the practice has been in tension with Rule 8.4(c). Colorado is an outlier in terms of its strict prohibition on “dishonesty, fraud, deceit or misrepresentation,” and many in the IP community believe the rule should be changed.
The Supreme Court’s proposed rule change has already garnered support within the IP community, including by INTA. The IP Section is considering adding its voice in support of the rule change, and we are seeking attorneys and firms with an interest in the rule change to join the IP Section in voicing support.
We will continue to be in touch about the topic, but meanwhile we plan to have a town hall to discuss the rule change and the IP Section’s views, so mark your calendars for a lunch presentation on August 29. We are applying for an ethics CLE credit for this presentation.
More information about the proposed rule change can be found here: https://www.courts.state.co.us/Courts/Supreme_Court/Rule_Changes.cfm
Comments to the Supreme Court are due by September 5, 2017 at 5:00 p.m. The hearing will occur on September 14, 2017 at 1:30 p.m. at the Colorado Supreme Court Courtroom, 2 East 14th Avenue, 4th Floor, Denver, Colorado 80203. Persons wishing to participate at the hearing should notify Cheryl Stevens (firstname.lastname@example.org) by Monday, September 11th at 5 p.m).
Please contact the IP Section with any questions.