Colorado Ethics Rules Summary
A Brief Journey Through the Ethics Rules
A handy and dandy summary (and occasional annotation) of
The Colorado Rules of Professional Conduct.
Updated March 14, 2024
Part 1—Client-Lawyer Relationship
1.0 Terminology: This section defines (a) belief as “actually suppos(ing) the fact in question to be true”. Belief may be inferred.(b) Confirmed in writing means a writing sent to the client confirming informed consent (and does not mean the client signed or returned anything), (c) law firm includes most everything, (d) fraud is deceptive conduct that is fraudulent under the substantive or procedural law, (e) informed consent is “the agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct,”(so disclosure and agreement) (f) knowingly means actual knowledge and may be inferred, (g) Licensed legal paraprofessionals, (h) partner, (i) reasonable is prudent and competent, (j) reasonable belief means actual, reasonable belief in the circumstances, (k) reasonably should know means “ascertained by” the reasonably prudent and competent lawyer, (l) screened (ethical wall) means reasonably adequate, timely isolation from any participation, to protect confidential information, (m) substantial means material, clear, and weighty, (n) tribunal includes a broad range of adjudicative bodies, and (o) a writing and signed writing includes any media with a broad range of “signatures.”. (This section has useful comments.)
1.1 Competence: Don’t be incompetent for your client. Have the knowledge, skill, thoroughness, and preparation reasonably necessary.
1.2 Scope of Representation and Allocation of Authority between Client and Lawyer: (a) We must abide by the client’s scope and objectives. We must consult as to the means. We have apparent authority. The civil client decides whether to settle. The criminal client decides whether to plead, go to jury, and testify. See CBA Ethics Opinion 114, footnotes 14 & 15. (b) Our representation, including appointments, is not an endorsement. (c) We can reasonably limit representation after informed consent. (See C.R.C.P. 11(b) and 311(b) — Federal Rules contra.) (d) We shall not knowingly counsel or assist clients as to criminal or fraudulent conduct, but we may counsel and assist as to consequences and help analyze the law.
1.3 Diligence: Be reasonably diligent and prompt.
1.4 Communication: (a)(1) Promptly inform the client about “informed consent” decisions. (2) Reasonably consult about means. (3) Reasonably inform about status. (4) Promptly comply with reasonable information requests. (5) Explain relevant ethical limitations. (b) Explain to the client “to the extent reasonably necessary for informed decisions.”
1.5 Fees: (a) Fees and expenses must be reasonable. Consider (1) the time and labor required, novelty and difficulty, and skill, and (2) if the client understands, the likelihood that the work will limit our other work, (3) the local customary fee, (4) the amount involved and the results (5) the time limitations, (6) the client relationship, (7) the lawyer’s experience, reputation, and ability, and (8) if the fee is contingent or fixed. (b) The lawyer must send a writing to the client in a reasonable time, describing the fees, expenses, and scope of the representation. The attorney must promptly send a writing about any change. (c) Contingent fees are fees that are contingent on success. (1) The contingent fee agreement will be in writing communicated before or within a reasonable time and includes (i) the lawyer and client names (ii) the nature of the claim and events triggering payment, (iii) how the fee will be determined, including percentages, and who will pay (A) costs and expenses advanced and (B) other client costs. (iv) How the lawyer will be paid if fired or withdrawn prior to earning the contingent fee. (v) A statement about expenses, including (A) an estimate, (B)if the lawyer is authorized to advance expenses, and for how much, to be client-reimbursed, (C) and if the client will pay expenses if no recovery. (vi) that there’s the possibility the court could award costs or attorney’s fees against the client. (vii) that the court could award attorney’s fees to the client, and how that will be handled. (viii) that if the attorney hires associated counsel the lawyer will promptly notify in writing and that (A) the fee will not increase and that the client has the right to approve or later terminate associated counsel. (ix) that other persons may be entitled to part of any recovery. (2) The agreement must be signed by the lawyer and client. (3) An agreement copy must be kept seven years from case resolution or lawyer withdrawal. (4) No contingent fees in (i) criminal defense (ii) in domestic cases securing a divorce or determining alimony, maintenance, or property division, (iii) or otherwise prohibited by law. (5) At case end the lawyer must send a disbursement statement including amounts received, costs and expenses incurred, sums to go to third parties including other firm lawyers, and computation of the contingent fee. (6) Contingent fee not enforceable without substantial compliance with this rule. (7) The Form attached to this rule is sufficient to comply with this rule, but other consistent forms may be used. Contingent fees may be blended with other kinds of fees if the contingent part complies with this rule. (d) Except in a rule 1.17 law-practice sale, we can’t split a fee with a non-firm attorney, unless the split is proportional to services or responsibility, the “client’s agreement is confirmed in writing”, and the total fee is reasonable. (e) Referral fees are prohibited. (f) Fees are earned when we “confer a benefit” or perform a service. Unearned, advance fees are client property and must be in a Rule 1.15B(a)(1) trust account, or non-cash property held separately. (g) Nonrefundable fees and retainers are prohibited. (Sather case) We can’t restrict a client’s right to terminate and can’t unreasonably restrict a refund. (h) A flat fee is for specific services at a fixed amount, regardless of time or effort. (1) You must send the client the terms in a written communication before or reasonably soon after commencing representation, including: (i) services description, (ii) amount and timing of payments, (iii) the amount earned during representation after tasks completed or events, (iv) the fees amount if representation ends before completion. (2) If there’s a dispute, follow Rule 1.15A(c) as to the disputed amount. (keep it in COLTAF). (3) The form in the rule is sufficient. You may use a consistent form.
1.6 Confidentiality of Information: (a) We shall not reveal information relating to representation, unless the client gives informed consent, or the disclosure is implicit. (b) We may disclose (1) to prevent reasonably certain death or substantial bodily harm (client threat of suicide), (2) the client’s criminal intent and information necessary to prevent a crime, (3) to circumvent a client who used our services to commit fraud reasonably certain to cause substantial financial injury, (4) when we find out after the crime or fraud has been committed, (5) to get ethical or legal advice for ourselves, (6) to protect ourselves, (7) to do a conflicts check arising from changes in employment or firm makeup, but not if that materially prejudices the client, or (8) to “comply with other law or a court order.” (Only to the extent necessary.) (c) We must make reasonable efforts to prevent inadvertent disclosure or unauthorized disclosure or access to confidences.
1.7 Conflict of Interest: Current Clients (a) No concurrent conflicts, meaning: (1) We can’t represent adverse clients. (2) Nor if there’s a significant risk representation will be materially limited by a client, a former client, a third party, or our personal interest. (b) But concurrent conflicts are okay if (1) we reasonably believe we can be competent and diligent to all, (2) there’s no law against it, (3) one client isn’t claiming against another in that litigation, and (4) everybody gives informed consent “confirmed in writing.”
1.8 Conflict of Interest: Current Client: Specific Rules: (a) We can’t have client business partners or buy client-adverse property, unless (1) it’s fair and disclosed in writing, (2) we inform in writing “the desirability” of talking to another attorney, and (3) the client gives written informed consent. (b) We can’t use client information to their disadvantage without informed consent. (See Rules 1.6 Confidentiality and 3.3 Candor) (c) We can’t solicit a substantial gift or draft a non-related client will or gift agreement to our or our relatives’ substantial benefit. (d) We can’t negotiate media rights for ourselves during employment. (e)(1) We can’t provide up-front money (champerty) except to advance litigation costs and expenses, which may be contingent on success. (2) If the client’s indigent, we may pay litigation costs and expenses. (3) Pro-bono and state paid lawyers and GALs may give “modest gifts” to indigent clients. (f) If we are paid by a third party, (1) the client must give informed consent, (2) there can be no interference, and (3) we can’t reveal confidences. (g) Settling one claim for two clients requires informed consent, a client-signed writing, and much disclosure. (h)(1) Don’t prospectively limit malpractice unless the client has another attorney. (2) Don’t settle a claim without written notice about consulting and reasonable time to consult another attorney. (i) Don’t take a proprietary interest in the lawsuit, except for (1) a legal fee-lien or (2) a reasonable contingency agreement. (j) Don’t sleep with clients who you weren’t sleeping with before they were clients. (k) This Rule 1.8 (except a & j) is subject to vicarious prohibition in your firm.
1.9 Duties to Former Clients: (a) Don’t represent a new client against an old client in a substantially related matter in which the parties are materially adverse, without old client consultation and informed consent, “confirmed in writing”. (b) Don’t switch firms and then knowingly represent a new client in the same or a substantially related case in which your old firm represented a client, if (1) the old client’s interests are materially-adverse, and (2) you acquired from the old client material 1.6 and 1.9(c) information, unless you get old client informed consent, “confirmed in writing”. (See 1.10(b)) (c)(1) Don’t use prior-client representation-related information against the client, unless it becomes public. (2) Don’t reveal any information about the prior-client except as Rules (such as 1.6 or 3.3) would permit or require.
1.10 Imputation of Conflicts of Interest: General Rule: (a) If we can’t represent, our partner can’t knowingly represent either, except for one-lawyer, personal-interest, non-significant risk conflicts. This rule is limited to Rules 1.7 and 1.9. But see 1.8(k). (b) If we leave the firm, the firm may then represent adverse clients unless the matter is (1) the same or substantially related and (2) any remaining lawyer has material 1.6 (confidentiality) or 1.9(c)(former client) information. (c) Rule 1.10 disqualification can be Rule 1.7-waived. (d) Look at Rule 1.11 for government lawyer disqualification. (e) If a new lawyer to our firm is 1.9-disqualified, everybody is disqualified, unless: (1) the new lawyer didn’t substantially participate, (2) the new lawyer is timely screened and gets no part of the fee, (3) the new lawyer gives prompt written notice with screening details to the old client and his lawyers, and, (4) then new lawyer and partners reasonably believe the screen will work.
1.11 Successive Government and Private Employment: Except as law may otherwise expressly permit, (a) (1) A former government attorney is subject to Rule 1.9(c). (former client information) (2) If he participated personally and substantially in a matter, he can’t go private and switch sides, without government consent. (b) Our new partners can’t begin or continue to be adverse, unless (1) the new lawyer is timely screened and gets no part of the fee, (2) the new lawyer gives prompt written notice with screening details to the old client and his lawyers, and, (3) then new lawyer and partners reasonably believe the screen will work. (c) Except as law may otherwise expressly permit, if we have confidential government information (defined here) from government employment about a person, we can’t use it against them to their material harm, for our private client. Our partners can’t represent that private client unless the new lawyer is timely screened and gets no part of the fee. (d) Except as law may otherwise expressly permit, (1) a current government attorney is subject to Rules 1.7 and 1.9. and (2) can’t (i) participate in a matter where we had substantial, personal, private participation unless the government gives informed consent, confirmed in writing. (ii) We can’t negotiate for private work with a party or party attorney if we have substantial, personal participation in their case, unless we are a law clerk and fit under Rule 1.12. (Former judge). (e)(1) and (2) “matter” means mostly everything.
1.12 Former Judge, Arbitrator, Mediator, or other Third-Party Neutral: (a) Expect as in (d) below, if we were personally and substantially the judge or mediator or arbitrator, we can’t become the same-case attorney, without all-party, informed consent, confirmed in writing. (b) As the judge, we can’t ask parties or their lawyers for a job. Law clerks can if the judge knows. (c) If we were formerly the judge, our law partners may also not knowingly represent unless (1) we are timely screened and get no part of the fee, (2) we give prompt written notice with screening details to the other parties, and, (3) we and our partners reasonably believe the screen will work. (d) A multi-member arbitration panel member/arbitrator representing a client can later represent the client.
1.13 Organization as Client: (a) If we work for a company, we represent the company. (b) If we catch an officer, shareholder, or etc. violating a legal obligation to the company or violating a law the company reasonably could be blamed for, and which will likely cause substantial company injury, we shall “proceed as is reasonably necessary in the best interest of the organization.” Unless we “reasonably believe that it is not necessary in the best interest of the organization”, we bump the information up the ladder, to the top if necessary. (c) Except as in (d) below, (1) if the problem is not resolved at the top and it’s a clear legal violation (2) and will reasonably certain to cause the company substantial injury, we may reveal information in addition to the Rule 1.6 (confidences) permissive disclosures, but only that information sufficient to prevent the substantial injury. (d) This doesn’t apply to internal legal-violation investigations, or to criminal defense of the company or its agents. (e) If we are fired or quit because of (b) or (c) above, we shall act reasonably to assure that the information get to the top. (f) We shall disclose to shareholders, officers, etc. who have adverse interests, that our client is the company. (g) We may represent an officer, shareholder, etc. in other matters, but see Rule 1.7. If that representation requires company consent, get consent from somebody other than the new client.
1.14 Client with Diminished Capacity: (a) If our client’s capacity to make adequately-considered representation-decisions is diminished we shall, as far as is reasonably possible, act as usual. (b) If our diminished-capacity client is at risk of any harm if there’s no action, and he can’t adequately act, we may take reasonable protective action. That includes consulting with helping agencies and seeking a guardian ad litem, conservator, or guardian. (c) This implies Rule 1.6-exception release of client information, but only to the extent necessary.
1.15 Safekeeping Property (COLTAF Rule – longest rule -- amended 2014)
1.15(A) General Duties of Lawyers Regarding Property of Clients and Third
Parties (a) We must hold client property separate, hold client funds in a trust account, and keep complete records. (b) Upon receipt of client or 3rd party property, deliver it to them and do an accounting if asked. (c) If there’s a dispute, keep it separate until resolution. (d) This rule applies to a broad range of client or third-party property.
1.15(B) Account Requirements (a) Every private-practice lawyer shall, in our name, maintain (1) a separate trust account where we keep entrusted funds and unearned fees and expenses, but only if we have such funds, and. (2) a business account containing all funds received for legal services. That account shall be called a business account or a similar name. (b) The trust account may be COLTAF. (c) The trust account shall be called a trust account or COLTAF trust account, plus any further designation that’s not misleading. (d) Trust accounts shall be in approved banks unless we get informed consent from our clients that our overdrafts won’t be reported to ARC. (e) Trust accounts shall be interest or dividend bearing and federally insured, unless the client gives informed consent. (f) We may keep service charge amounts in the trust account. We shall designate those amounts in our records. (g) We shall deposit entrusted funds in a COLTAF account if feasible, unless (h) the funds are deposited in a interest bearing account where interest or dividends are paid to the client or 3rd party, less service charges or fees. (i) if interest or dividends on funds do exceed costs of a client-paid, interest-bearing account, we may apply for a refund from COLTAF. (j) We consent to COLTAF’s bank reporting requirements and hold the bank harmless. (Can’t sue our bank for reporting us.) (k) If the funds should go to a third party, and the party is missing or dead, after reasonable efforts to find heirs, the lawyer may (1) continue to hold the funds, or (2) remit them to COLTAF and keep a record. If the party shows up later, the lawyer may ask for a refund.
1.15(C) Use of Trust Accounts (a) No debit cards or ATM withdrawals. No cash withdrawals or cash back on deposits. The deposit slip must be detailed and duplicate. (b) Only a Colorado licensed lawyer or a person lawyer supervised may transfer or withdraw or be a signatory. Withdrawals may only be by check or bank or wire transfer. (c) The lawyer or supervised person must reconcile in detail quarterly.
1.15(D) Required Records (a) We or our firms shall retain for 7 years (1) separate client records containing: (A) & (B) (detailed records) (2) on all business bank accounts (3), (4), (5), (6), & (7) and billing records and payment records and bank records. (very detailed) (b) (sets out accounting methods and consistency; computer records okay, kept at principal office) (c) We shall maintain our own records if the firm dissolves or we or another attorney leaves. (d) We shall disclose the records when ARC sends a subpoena duces tecum. Those records will remain confidential.
1.15(E) Approved Institutions (Very detailed rule about the approval of banks, ARC’s obligations about banks, the banks obligations, the form of the accounts, rate of interest, amount of bank account fees, and bank immunity from suit.)
1.16 Declining or Terminating Representation: (a) Except as in (c) below, we must not represent a client, or continue to represent, (1) if that breaks an Ethics Rule or the law, or (2) if our physical or mental condition materially impairs our representation, or (3) if we are fired. (b) We may withdraw or request the court to permit withdrawal (1) if there’s no material adverse client effect, (2) using our services, the client’s breaking the law or committing fraud, (3) the client did that in the past, (4) the client insists on repugnant or fundamentally disagreeable action, (5) the client doesn’t pay after warning, (6) the employment becomes unreasonably financially burdensome or the client makes the employment unreasonably difficult, (7) there is other good cause. (c) We can’t withdraw if the judge says no. (d) After termination protect the client’s interests; giving reasonable notice, giving reasonable time for new counsel, surrendering papers/property, and refunding unearned fees. The attorney’s lien is okay.
1.16A Client File Retention: (a) A private practice attorney shall retain client files unless, (1) she gives the file to the client or she has client-signed permission to destroy and there are no legal proceedings set or threatened. (2) she gives the client written 30-day notice and there are no legal proceedings set or threatened. (b) She may destroy the file without notice after ten years after termination of the legal matter, if she hasn't agreed otherwise. (c) But criminal attorneys shall keep files (1) for the client's life if sentenced to death, life without parole, or indeterminate, including a life sex abuse sentence, (2) for 8 years from sentencing if it's a felony sentence and it was appealed, (3) for 5 years if a felony isn't appealed. (d)Written 30-day notice may be either in the fee agreement if she has a rule-consistent file retention policy or in a client-delivered notice. (e) Legal obligations, court orders, and tribunal rules trump this rule. (Detailed Comment 1 first requires reasonable efforts to find the client, then allows notice to the last-known address.)
1.17 Sale of Law Practice: We may sell or purchase a business or area of practice, including good will, if: (a) the seller quits the law or the area of law, (b) the whole business or area of practice is sold, (c) the seller gives notice to the client (at the last known address) regarding (1) the proposed sale, (2) the client’s right to hire other counsel or take the file, and (3) that the client has to act within 60 days. (d) The fees can’t go up.
1.18 Duties to Prospective Clients: (a) A prospective client is anybody who talks to you about possibly hiring you. (b) Even if she doesn’t hire you, you can’t use or reveal their significantly harmful consultation information, except under Rule 1.9 (former clients) (c) You then can’t represent other clients with materially adverse interests in the same or substantially related matter. The lawyer’s partners are similarly prohibited. (d) But the intake lawyer may still represent if, (1) both the prospective client and the adverse client give informed consent, confirmed in writing, or, (2) the firm may still represent if the disqualified intake lawyer reasonably took only the minimum information on intake, and (i) the intake lawyer is timely screened and gets no part of the fee, and (ii) written notice “is promptly given to the prospective client.”
Part 2—Counselor
2.1 Advisor: We shall use independent judgment and be candid. We may explore moral, economic, social, etc. considerations. We should advise about ADR.
2.2 Intermediary: (Repealed)
2.3 Evaluation for Use by Third Persons: (Opinion Letter) (a) We may do such an evaluation if we reasonably believe it is compatible with our client responsibilities. (b) If we reasonably should know our letter will materially affect the client, the client must give informed consent. (c) Except for disclosure in the report, we must otherwise protect Rule 1.6 confidentiality.
2.4 Lawyer Serving as Third-Party Neutral: (a) That’s defined as assisting two or more parties who are not clients. This may include being an arbitrator or mediator. (b) We must inform the parties they aren’t our clients. If we reasonably should know they don’t understand, we shall explain the difference between a third party neutral and attorney-client relationships.
Part 3—Advocate
3.1 Meritorious Claims and Contentions: We shall not bring or defend, assert or controvert, proceedings or issues without a non-frivolous basis, unless we have a good faith argument for extension, modification, or reversal. In a criminal or incarceration case, we may defend to make the elements be proven.
3.2 Expediting Litigation: But only consistently with our client’s interests.
3.3 Candor Toward the Tribunal: (a) We shall not knowingly to a tribunal, (1) falsely state material facts or law or fail to correct what we previously said, (2) fail to disclose directly adverse, local legal authority not disclosed by our opponents, (3) offer false evidence or fail to reasonably remediate, including telling the judge, whether previously offered by the lawyer, the client, or a client’s witness. We may refuse to offer evidence we reasonably believe is false, other than a criminal defendant’s testimony. (b) If we do a “adjudicative proceeding” we must remediate the proceeding-related criminal or fraudulent conduct of anybody, including telling the judicial officer. (c) These duties continue to proceeding’s conclusion regardless of Rule 1.6. (confidentiality) (d) In an ex parte hearing, we shall disclose all material facts to the court, including adverse facts.
3.4 Fairness to Opposing Party, Counsel and LLPs: We shall not (a) unlawfully obstruct a party’s access to evidence or alter, conceal, or destroy evidence or get another to do that, (b) falsify evidence, counsel or assist witness perjury, or bribe a witness, (c) knowingly disobey a tribunal rule, except openly, (d) frivolously request discovery or fail to diligently comply with legal, proper discovery requests, (e) in trial, raise irrelevant evidence, assert personal knowledge except when a witness, or state our opinion as to the justness of a cause, witness credibility, or the culpability, guilt, or innocence of a litigant, or, (f) ask a non-client person to not talk to others unless (1) the person is a client relative, employee or agent and no other law prohibits, and (2) not talking won’t harm the person’s interests.
3.5 Impartiality and Decorum of the Tribunal: We shall not (a)(b) illegally seek to influence, or without legal or court authority communicate ex parte during a proceeding, with judges, jurors, prospective jurors, or officials. We may communicate ex parte with a judge who initiates the communication if it’s reasonably within their authority. (c) We shall not communicate with jurors after trial if (1) prohibited by law or order, (2) the juror says no, (3) our communication involves misrepresentation, coercion, duress, or harassment, or (4) the communication is reasonably likely to demean, embarrass or criticize. (d) We shall not intentionally disrupt a tribunal.
3.6 Trial Publicity: (a) We and our associates can’t talk outside of court to the media if we know or reasonably should know that talking will very likely materially prejudice an adjudicative proceeding. (b) (There are many specific exceptions.) (c) We may, if required, speak to protect our client against substantial, undue, prejudicial detriment of publicity we didn’t cause, but no more than that. (d) Our associates can’t either.
3.7 Lawyer as Witness: (a) We can’t be advocates at the trial if we are a likely, necessary witness, unless (1) the testimony is uncontested, (2) is about the value of our services in the case, or (3 disqualification would be a substantial hardship to the client. (b) Our other firm attorneys and LLPs may be advocates in the matter unless prohibited by Rules 1.7 (current client loyalty) or 1.9 (former client loyalty. See generally Fognani v. Young, 115 P.3d 1268 (Colo. 2005)
3.8 Special Responsibilities of a Prosecutor: Criminal prosecutors shall (a) require probable cause and (b) reasonably assure the defendant’s been advised of procedures for and has had time to obtain counsel. (c) a prosecutor shall not try to obtain waiver of important pretrial rights from a pro se defendant. (d) The prosecutor shall timely disclose offense-adverse or mitigating, sentence-mitigating, or plea affecting evidence regardless of admissibility that they should know of, unless there’s a protective order. The plea offer must not condition disclosure. The prosecutor diligently and timely must request information from involved agencies and alert defense if unable to obtain it. (e) The prosecutor shall not subpoena an attorney to disclose confidential client information in a grand jury or criminal proceeding unless with reasonable belief, (1) the information is not privileged, (2) is essential to prosecution or investigation, and (3) there’s no feasible alternative. (f) A prosecutor may inform the public of the nature and extent of the prosecution, if necessary to serve “a legitimate law enforcement purpose.” Outside the courtroom, the prosecutor can’t make comments substantially likely to “heighten public condemnation,” and must reasonably prevent employees and others from violating Rule 3.6 or this rule.
3.9 Advocate in Nonadjudicative Proceedings: In legislative or administrative tribunals we must disclose our role as advocate. We must comply with Rules (3.3(a)(1), 3.3(a)(3), 3.3(b), and 3.4(a) and (b).
Part 4--Transactions With Persons Other Than Clients
4.1 Truthfulness in Statements to Others: When representing clients (a) we shan’t knowingly lie to a third party about facts or law. (b) We must disclose material facts to third persons so as to not knowingly assist our client’s crime or fraud, unless the facts are confidential under Rule 1.6. (c.f. Rule 3.3. which does not except out Rule 1.6 confidentiality for candor to the court.)
4.2 Communication with Person Represented by Counsel or LLP: Without consent or legal authority, and during representation of a client, we can’t talk to a person about the representation subject matter, if they are attorney-represented in the matter, unless authorized by law or court order. (Ethics Opinion 69— The other side’s employees)
4.3 Dealing with Unrepresented Persons: On behalf of a client, we can’t imply to pro se persons that we are disinterested, we must reasonably correct the person’s misunderstanding of our role, and we may not give them legal advice except to get an attorney, if the pro se person’s interests are reasonably in conflict.
4.4 Respect for Rights of Third Persons: (a) In representation, we may not act merely to embarrass, delay, burden, or violate the legal rights of third persons, without substantial purpose. (b) If we reasonably should know a received document about our client was mis-sent, we shall promptly notify the sender. (c) Unless permitted by court order, if we haven’t read it and the sender says it was mis-sent, we don’t read it and follow the sender’s instructions.
4.5 Threatening Prosecution: (a) In civil matters, we can’t threaten criminal, administrative, or disciplinary charges to gain an advantage or participate in presenting criminal, administrative, or disciplinary charges solely to gain an advantage. (b) It’s okay to tell the other side, reasonably, that their behavior violates rules or statutes. (Colorado-only rule – carried over from Code – safe harbor added 1997)
Part 5—Law Firms and Associations
5.1 Responsibilities of a Partner of Supervisory Lawyer: (a) Partners and (b) direct supervisors must reasonably ensure ethical conformance in the firm. (c) The lawyer is ethically responsible if (1) he or she orders or knowingly ratifies the unethical conduct or (2) is a partner or supervisor, knows of the conduct in time, and doesn’t mitigate.
5.2 Responsibilities of a Subordinate Lawyer: (a) The subordinate is bound by the rules regardless. (No “just following orders” defense.) (b) but it’s okay if he or she relies on a supervisor’s reasonable resolution of an arguable question.
5.3 Responsibilities Regarding Nonlawyer Assistants: (a) A partner or (b) a supervisor shall reasonably ensure employees conform to ethical obligations. (c) The lawyer is ethically responsible if he or she (1) orders or knowingly ratifies the unethical conduct or (2) is a partner or supervisor, knows of the conduct in time, and doesn’t mitigate. (2A) Duties to LLPs.
5.3A Responsibilities Regarding LLPs: (a) supervisors must ensure LLPs follow LLP ethics rules, (b) and lawyer’s ethics rules, and (c) supervisors are responsible if (1) they order or ratify conduct or, (2) know but don’t timely remediate.
5.4 Professional Independence of a Lawyer: (a) Except LLPs, we can’t split fees with non-lawyers except (1)(2)(3) to a partner, associate, LLP, or attorney-seller’s estate, (4) toward employees’ retirement, or (5) court-awarded legal fees with the employing, retaining, or recommending non-profit. (b) Except LLPs, we can’t practice law with non-attorneys. (c) Referring persons can’t direct our work. (d)(1) In a for-profit corporation, except LLPs, a non-lawyer cannot own an interest or direct or control a lawyer’s professional judgment. (d-1) An LLP may not direct or control judgment (e) For-profit professional corporations must comply with Rule 265 (Professional Service Corporations). (f) Suspended, disbarred, after 6 months on disabled status, or inactive attorneys or LLPs are “non-lawyers.”
5.5 Unauthorized Practice of Law: (a) We can’t (1) practice law here without a Colorado license, unless authorized by CRCP 204 or permitted by federal or tribal law, (2) practice somewhere else if it violates their rules, (3) aid or abet someone who does, or (4) have disbarred or seriously suspended attorneys or LLPs in the firm name. (b) We can’t let a disbarred, seriously suspended, or disability inactive attorney (1) give legal advice to our clients, (2) appear at a hearing (3) or deposition for our clients, (4) negotiate with others for our clients, (5) otherwise practice law, or (6) handle clients funds. (c) Subject to (d) below, we may employ a disbarred, seriously suspended, or disability inactive attorney or LLP to be a clerk, drafter, or researcher, including: (1) drafting, (2) scheduling with clients or others, or (3) assisting an attorney at a deposition. (d) If the disbarred, seriously suspended, or disability inactive attorney or LLP has any contact with clients, we must first (1) give client notice that the attorney can’t practice law and (2) retain the notice for two years after completion. (e) One-time notice under this rule or CRCP 242.32 is sufficient.
5.6 Restrictions on Right to Practice: We can’t offer or make an employment-related agreement (a) restricting an attorney’s or LLP’s right to practice, except retirement benefits, or (b) settle a case that restricts our practice.
5.7 Responsibilities Regarding Law-Related Services: (a) These ethics rules apply to law-related services if done by (1) the lawyer and are indistinct from his legal practice or (2) by a lawyer-controlled entity, unless the lawyer reasonably assures that the customer knows the services aren’t legal services and that the customer-protections of the ethics rules don’t apply. (b) A service is law-related if they “might reasonably be performed with and in substance are related to the provision of legal services” and wouldn’t be unauthorized practice if a non-lawyer did them.
Part 6—Voluntary Pro Bono Public Service
6.1 Voluntary Pro Bono Publico Service: We are obliged to do pro bono. We should do 50 hours pro bono annually, (a) doing a substantial majority without a fee, for (1) poor folks and (2) charities, and (b) the rest at low or no fee for (1) organizations that need help or (2) poor folks, or (3) by participating in pro-law activities. We also should send money to legal services. If our jobs won’t allow free legal work, then we should do the services or follow paragraph (b).
6.2 Accepting Appointments: Don’t try to duck court appointments unless (a) it would likely break the Rules (including 1.1 competency) or the law, or (b) be unreasonably financially or oppressively burdensome or, or (c) is repugnant. See Stern v. Court, 773 P.2d 1074 (Colo. 1989).
6.3 Membership in Legal Services Organization: A lawyer may serve in a legal services organization even if it serves people’s interests that are adverse to clients. But the lawyer can’t participate in decisions or actions if (a) it breaks Rule 1.7 or (b) it would materially cause the staff attorney to break Rule 1.7.
6.4 Law Reform Activities Affecting Client Interests: We may serve in a reform organization despite client effects. If there are positive client effects, we have to disclose to the organization but don’t have to identify the client.
6.5 Nonprofit and Court-Annexed Limited Legal Services Program: (a) We may perform short-term limited legal services without either we or the client expecting continuing representation. (1) We are subject to Rules 1.7 and 1.9(a) only if we know of a conflict, and (2) to Rule 1.10 only if we know our partner is 1.7 or 1.9(a) disqualified. (b) Rule 1.10 only applies as in (a)(2) to these short-term limited legal services.
Part 7—Information About Legal Services
(Some of the previous part 7 rules were moved to the comments.)
7.1 Communications Concerning a Lawyer’s Services: A lawyer shall not make a false or misleading communication about the lawyer or the services. False or misleading means a material misrepresentation of facts or law … or … as a whole, omits a fact necessary for it not to be materially misleading.
7.2 Communications Concerning a Lawyer’s Services: Specific Rules. (a) We may use any media. (b) We may not pay for recommendations, except for: (1) reasonable advertising costs, (2) the charges of a legal services plan or a not-for-profit or qualified referral service, (3) buying a law practice, (4) reciprocal referral agreements with lawyers or non-lawyers if (i) it’s not exclusive and (ii) the client is informed, (5) giving nominal gifts. (c) We can’t say we are a specialist unless (1) the certifying agency is approved by the state or the ABA and (2) we identify the certifying organization. (d) Our advertisements must include the name and contact information of at least one responsible attorney.
7.3 Solicitation of Clients: (a) Solicit means a lawyer communication to a specific person who needs specific legal services. (b)No for-profit in-person contact unless the contact is with: (1) a lawyer, (2) family or close friends, (3)a business person, or (4) LLP routinely using that service. (c) No solicitation if (1) the target has said no contact, or (2) the solicitation involves coercion, duress, or harassment. (d) No soliciting for personal injury cases within 30 days of the injury, unless the victim is family or a prior professional or business contact, and (1) the victim isn’t already represented, and (2) if the case will be sent out to a different lawyer or firm, the communicate so states. (e) Communications authorized or ordered by law or a judge are okay. (f) Solicitations shall (1) say “Advertising Material” on an envelope, if it’s a letter. If it is any other kind of solicitation it must start and end with “Advertising Material.” (2) not reveal the legal issue on the outside, and (3) require a copy to be kept for five years. (g) Regardless, we may participate with pre-paid or group legal plans if they don’t solicit for specific cases.
7.4 Reserved
7.5 Reserved
7.6 Political Contributions to Obtain Legal Engagements or Appointments by Judges: We can’t get government work or a “appointment by a judge” if we make or solicit political contributions for the purpose of getting the work or appointment.
Part 8—Maintaining the Integrity of the Profession
8.1 Bar Admission and Disciplinary Matters: If we apply to the bar or reapply for reinstatement, or make statements concerning an application, we can’t (a) knowingly make a false statement of material fact (b) or fail to correct a known misapprehension or fail to respond to lawful admission or regulatory authority, except to protect Rule 1.6 (Confidentiality) information.
8.2 Judicial and Legal Officials: (a) We shall not knowingly make false statements or statements with reckless disregard about the qualifications or integrity of judges, adjudicatory officers, public legal officers, or candidates for judicial or legal-office election, appointment or retention. (b) A lawyer who is a candidate for judicial retention shall comply with the judicial conduct code.
8.3 Reporting Professional Misconduct: (a) If we have knowledge of a Rules violation that raises substantial question as to an attorney’s or LLP’s honesty, trustworthiness, or fitness to practice we shall inform the appropriate authority or, (b) if we have knowledge of a Judicial Rules violation that raises a substantial question as to a judge’s fitness for office, we shall notify the appropriate authority, (c) unless disclosure would violate Rule 1.6 (Confidentiality) or the information came from a peer assistance program (Including the Ethics Hotline.) and would similarly be confidential.
8.4 Misconduct: (a-1) We can’t violate or attempt to violate a rule. We can’t get someone else to do what we can’t do, (a-2) assist or induce an LLP to do so, (b) commit a crime that reflects adversely on our honesty, trustworthiness, or fitness to practice, (c) engage in conduct involving dishonesty, fraud, deceit, or misrepresentation, except we may “advise, direct, or supervise” clients, cops, and investigators “who participate in lawful investigative activities.” (pretexting) (d) prejudice the administration of justice, (e), state or imply an ability to improperly influence a judicial officer or government agency or imply we can “achieve results” by breaking the Rules or “other law”, (f) knowingly assist a judicial officer to break the Judicial Rules or “other law”, (g) engage in conduct, during representation, that appeals to or engenders bias as to race, gender, religion, national origin, disability, age, sexual orientation, or socioeconomic status, or (h) engage in any other conduct that wrongfully harms others and adversely reflects on the lawyer’s fitness to practice law. i. engage in conduct we reasonably should know is sexual harassment, if it’s in connection with our professional activities.
8.5 Jurisdiction: (a) If we are licensed here, we are subject to discipline even if we are working in Tuscaloosa. A lawyer not admitted here subjects himself to jurisdiction by offering “to provide any legal services in this jurisdiction.” We can be disciplined in more than one place. (ethical double-jeopardy) (b) The applicable rules are (1) for conduct in court, where the court sits, unless that court’s rules say differently, (2) but otherwise where the conduct occurred or where the “predominant effect” occurred. We won’t be disciplined if we reasonably believed we were complying with the rules where the predominant effect would occur. (ethical choice of law)
9.0 How Known and Cited. You didn’t know there was a Rule 9, did you? Don’t worry. It has no substance …
… similarly perhaps to these materials by Phil James. Phil@Lawyer.com Thursday, March 14, 2024
Colorado Bar Association Ethics Hotline --- 303.860.1115