Colorado Legal Ethics

1.2 Rule 1.2 Scope of Representation

1.2:100 Comparative Analysis of Colorado Rule

¥ Primary Colorado References: CO Rule 1.2
¥ Background References: ABA Model Rule 1.2, Other Jurisdictions
¥ Commentary:

1.2:101 Model Rule Comparison

Colo.RPC 1.2 is identical to the Model Rule with one exception. Colo.RPC 1.2(f) prohibits a lawyer, while representing a client, from engaging in conduct that exhibits or is intended to appeal to or engender bias against a person on account of that person's race, gender, religion, national origin, disability, age, sexual orientation, or socioeconomic status. Colo.RPC 1.2(f) applies to conduct directed to any person involved in the judicial process, including other attorneys, parties, witnesses, court personnel, and judges. In 1998, five years after Colo.RPC 1.2(f) was adopted, the Comment to MR 8.4 was amended to prohibit a lawyer from manifesting, by words or conduct, bias or prejudice on the bases set forth in the Colorado Rule.

The Comment to Colo.RPC 1.2 is identical to the Comment to MR 1.2.

1.2:102 Model Code Comparison

As the Colorado Committee Comment confirms, Colo.RPC 1.2 has no single and direct counterpart in the Model Code. However, the subsections of the rule track several Disciplinary Rules and Ethical Considerations.

Colo.RPC 1.2(a) reflects the themes of three ethical considerations and a related disciplinary rule that addressed the client's control over decisions related to the representation. EC 7-7 provided: "In certain areas of legal representation not affecting the merits of the cause or substantially prejudicing the rights of the client, a lawyer is entitled to make decisions on his own. But otherwise the authority to make decisions is exclusively that of the client. . . ." As examples of decisions that rest with the client, EC 7-7 stated that in civil cases "it is for the client to decide whether he will accept a settlement offer or whether he will waive his right to plead an affirmative defense," and in criminal cases "it is for the client to decide what plea should be entered and whether an appeal should be taken." EC 7-8 stated: "A lawyer should exert his best efforts to insure that decisions of his client are made only after the client has been informed of relevant considerations." However, that ethical consideration further recognized that "[i]n the final analysis,Ê.Ê.Ê. the lawyer should always remember that the decision whether to forego legally available objectives or methods because of nonlegal factors is ultimately for the client.Ê.Ê.Ê." EC 5-12 provided: "Inability of co-counsel to agree on a matter vital to their representation of their client requires that their disagreement be submitted by them jointly to their client for his resolution, and the decision of the client shall control the action to be taken." DR 7-101(A)(1) provided that a lawyer "shall not intentionallyÊ.Ê.Ê. fail to seek the lawful objectives of his client through reasonably available means permitted by law and the Disciplinary Rules."

Paragraph (b) is consistent with EC 7-17, which provided: "The obligation of loyalty to his client applies only to a lawyer in the discharge of his professional duties and implies no obligation to adopt a personal viewpoint favorable to the interests or desires of his client. While a lawyer must act always with circumspection in order that his conduct will not adversely affect the rights of a client in a matter he is then handling, he may take positions on public issues and espouse legal reforms he favors without regard to the individual views of any client."

Several Model Code provisions underlie Colo.RPC 1.2(c). DR 7-101(B)(1) provided that "a lawyer may . . . [w]here permissible, exercise his professional judgment to waive or fail to assert a right or position of his client." DR 7-101(B)(2) permitted a lawyer to "[r]efuse to aid or participate in conduct that he believes to be unlawful, even though there is some support for an argument that the conduct is legal." EC 7-8 stated: "In the event that the client in a nonadjudicatory matter insists upon a course of conduct that is contrary to the judgment and advice of the lawyer but not prohibited by Disciplinary Rules, the lawyer may withdraw from the employment." EC 7-9 provided that "when an action in the best interest of [the lawyer's] client seems to him to be unjust, he may ask his client for permission to forego such action."

With regard to Colo.RPC 1.2(d), DR 7-102(A)(7) provided that a lawyer shall not "counsel or assist his client in conduct that the lawyer knows to be illegal or fraudulent." DR 7-102(A)(6) stated that a lawyer shall not "participate in the creation or preservation of evidence when he knows or it is obvious that the evidence is false." DR 7-106 provided that a lawyer shall not "advise his client to disregard a standing rule of a tribunal or a ruling of a tribunal . . . but he may take appropriate steps in good faith to test the validity of such a ruling." EC 7-5 read that a lawyer "should never encourage or aid his client to commit criminal acts or counsel his client on how to violate the law and avoid punishment therefor."

1.2:200 Creating the Client-Lawyer Relationship

¥ Primary Colorado References: CO Rule 1.2
¥ Background References: ABA Model Rule 1.2, Other Jurisdictions
¥ Commentary: ABA/BNA ¤ 31:101, ALI-LGL ¤¤ 26-29A, Wolfram ¤ 9.2