H. Michael Steinberg has 42+ years of experience practicing Colorado criminal law. Mr. Steinberg strives to stay current with the ever changing aspects of criminal law issues and updates resulting in his extensive knowledge of successful criminal defense as well as appellate work. He is also an active member of the National Association of Criminal Defense Lawyers, the Colorado Criminal Defense Bar Association, the Colorado Trial Lawyer's Association, and the Colorado and Arapahoe Bar Associations.
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by Colorado Criminal Defense Lawyer – Attorney – H. Michael Steinberg

Colorado lawyers who threaten to report a crime to the police unless they are paid money MAY BE violating the criminal and ethical laws of the state.

This article addresses the ethical rules governing the conduct of lawyers and the laws governing the Colorado crime of compounding.

The Criminal Side of Threatening Criminal Prosecution

Here is the actual Colorado criminal law on the subject of the crime of compounding

18-8-108. Compounding.

(1) A person commits compounding if he accepts or agrees to accept any pecuniary benefit as consideration for:

(a) Refraining from seeking prosecution of an offender; or
(b) Refraining from reporting to law enforcement authorities the commission or suspected commission of any crime or information relating to a crime.

(2) It is an affirmative defense to prosecution under this section that the benefit received by the defendant did not exceed an amount which the defendant reasonably believed to be due as restitution or indemnification for harm caused by the crime.

(3) Compounding is a class 3 misdemeanor.


Ethical Issues Binding Lawyers

The Civil Side of Settling Civil Cases of Theft or Embezzlement Using The Threat of Prosecution

Every state has it’s own version of the Rules Of Professional Conduct (RPC). Colorado is no exception.

Regarding Civil Settlements – several Colorado RPC’s govern an attorney’s permissible conduct in negotiating settlements on a client’s behalf.

One is Rule 4.4 prohibits embarrassing, delaying, or burden a third person

“In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person.” Rule 4.4, RPC.

Another is Rule 4.1(a)

“In the course of representing a client a lawyer shall not knowingly: . . . Make a false statement of material fact or law to a third person.” Rule 4.1(a), RPC. They also provide that “A lawyer shall not . . . offer an inducement to a witness that is prohibited by law.”

Rule 3.4(b), RPC.

… “[a] lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis for doing so that is not frivolous, . . .”

Rule 3.1, RPC. States

“It is professional misconduct for a lawyer to: . . . Commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects” or to “engage in conduct that is prejudicial to the administration of justice.”

Lawyers must be honest and fair play in their dealings with people other than their clients.

These rules also … collectively prohibit threatening criminal prosecution solely for the purpose of negotiating a favorable settlement in a civil action – something on the order of theft by extortion within the meaning of the criminal code.

The rules overlap in their application and must be read carefully.

But this does NOT mean the mere mention of the possibility of criminal charges being brought is off-limits? The answer is no.

The ABA Ethics Committee has also issued an opinion holding that an attorney may use the possibility of bringing criminal charges against an opposing party in a private civil matter as long as the civil matter and the criminal matter are related and warranted by law and fact, provided that the attorney does not try to influence the criminal process. ABA Op. 92-363 (1992).

For lawyers – any wrongful conduct, including criminal conduct, dishonesty, and deceit are clearly forbidden. The rules allow lawyers to make truthful observations – it’s permissible, for example, to point out that the opposing party’s actions could be subject to criminal prosecution – but not to participate in extorting money from the other side.

Also making idle or dishonest or frivolous threats is inconsistent with every lawyer’s obligations under the RPC. BUT the lawyer CAN – in settlement negotiations – discus the criminal implications of a party’s conduct.

One Example – An Employee Steals From A Business

A lawyer representing an employee who has committed a criminal theft attempts to negotiate a resolution with the employer business or its clients, might ask that the employer refrain from reporting the matter for criminal prosecution in exchange for repayment of the money.

What is not permissible is for a lawyer representing the employer to demand huge sums of money – well beyond the amount stolen – in exchange for not reporting the theft to the police.

In addition – if the lawyer knows that a client would never under any circumstances refer a matter for criminal prosecution, it is wrong to threaten such an action.

DR7-105(A) of the predecessor Model Rules barred lawyers from presenting, participating in presenting, or threatening to present criminal charges “solely to obtain an advantage in a civil matter.”

The latest version of the Model Rules and the Colorado equivalent – eliminated this provision.

Threatening Criminal or Administrative Prosecution in a Civil Case – The Key Continue reading

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In March of this year (2012) the United States Supreme Court decided two cases that will change the face of plea bargaining forever.

The First Case – Cooper

In Lafler v. Cooper and Missouri v. Frye –  are U. S. Supreme Court cases involving criminal defendants who claim that their convictions should be overturned because they may have been convicted on lesser charges had their defense attorneys not given them bad advice.

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While state legislators in Colorado may change this law sometime in the future – the present state of the law does not permit the expungement of juvenile sex crime record if the juvenile has been adjudicated (convicted) of a Colorado sex crime – even a misdemeanor.

When making the decision to go to trial or accept an alternative plea agreement – juveniles and their parents must be made aware of the inability to hide or to expunge or to otherwise keep this conviction from the possibility of a background check uncovering the conviction.

The impact of a sex crime on a juvenile’s future employment cannot be overstated. This adjudication can cause problems in future education, employment – even renting property. With the thoroughness of the comprehensive background checks now being performed – these crimes can be located much more easily.

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By H. Michael Steinberg Colorado Criminal Defense Lawyer

Colorado is one of several states that limit the use of restraints on pregnant women in custody or confined in prisons, municipal jails, county jails, juvenile detention, or Coloroado Department of Human Services Facilities.

The staff of these institutions are NOT PERMITTED to use restraints of any kind on a pregnant woman during labor and delivery unless exceptional circumstances exist.

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As an ex Career DA and now as a Colorado criminal defense lawyer, I have been aware for more than 42  years of a loophole in the criminal law of Colorado that actually created an incentive for drunk drivers to flee the scene of car accidents.

That loophole has now been closed.

With the passage of House Bill 1084 – signed by the Governor on June 6, 2012 – the new law increases the possible penalties for leaving the scene of a serious bodily injury crash from a class 5 felony to a class 4 making it equivalent to possible penalties for drunk driving.

End the Incentive to Flee

The old Colorado law gave drunk drivers, especially repeat offenders, an incentive to not stop at the scene of a crash and call for help of injured people. It benefited drunk drivers with a lesser range of penalties for fleeing the scene and trying to hide out until they are sober. The consequence of this loophole at times might mean the life or death of someone needing immediate medical attention at the scene of a crash.

H. Michael’s Take:

Defending The Hit and Run Case In Colorado

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By H. Michael Steinberg Colorado Criminal Defense Lawyer

To understand the Colorado “retreat to the wall”  rule – you have to examine the case of  Idrogo v. People decided by the Colorado Supreme Court in 1991:

Here is the rule:

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Former Greeley police officer Daniel Shepherd was found not guilty by a Colorado jury on February 8, 2012.

What makes this case so important – is that the jury looked at the “he said – she said” nature of the allegations – found both sides had lied or covered up – so they did what jurys are supposed to do – they focused on the absence of forensic evidence that would have pointed the way to the truth. This time – because of the incompetence of the police – there was none

In the words of one juror – who clearly got it right:

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A recent article in the Denver Post finally addresses the most recent attempts by Colorado Schools – hopefully to be followed by the Colorado State legislature – to reverse years of Zero-Tolerance policies in Colorado’s Public Schools and in the Courts.

Last year in December – another excellent article in the Denver Post quoted a Magistrate Kent Spangler, a Fort Collins Judge, who had this to say:

“Kids won’t gain a respect for the law, for their parents, for teachers, for rules in general if they’re told ‘You’re wrong! You messed up!’ and don’t take the time to get at the root of the problem,”

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A new Colorado Law – helps Sex Offenders Understand the Requirements of Sex Offender Registration.

The 2011 bill makes a number of modifications to the requirements for registering as a sex offender, including the following:

• county sheriffs are required to submit registration information for individuals who are required to register as sex offenders and are held for more than five days or are sentenced to a term of imprisonment in a county jail;

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