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End-of-life notice: American Legal Ethics Library

As of March 1, 2013, the Legal Information Institute is no longer maintaining the information in the American Legal Ethics Library. It is no longer possible for us to maintain it at a level of completeness and accuracy given its staffing needs. It is very possible that we will revive it at a future time. At this point, it is in need of a complete technological renovation and reworking of the "correspondent firm" model which successfully sustained it for many years.

Many people have contributed time and effort to the project over the years, and we would like to thank them. In particular, Roger Cramton and Peter Martin not only conceived ALEL but gave much of their own labor to it. We are also grateful to Brad Wendel for his editorial contributions, to Brian Toohey and all at Jones Day for their efforts, and to all of our correspondents and contributors. Thank you.

We regret any inconvenience.

Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.


Colorado Legal Ethics

1.4   Rule 1.4 Communication

1.4:100   Comparative Analysis of Colorado Rule

Primary Colorado References: CO Rule 1.4
Background References: ABA Model Rule 1.4, Other Jurisdictions
Commentary:
CO Commentary: Lewis, Ten of the Easiest Ethics Violations for Honest Lawyers, 27 Colo. Law. 75 (Aug. 1998)

1.4:101      Model Rule Comparison

Colo.RPC 1.4 is identical to MR 1.4.

The Comment to Colo.RPC 1.4 is, in essence, the same as the Model Rule Comment. However, the Colorado Comment expands upon a lawyer’s duty to communicate with a client: “[i]n order to avoid misunderstandings and hence to maintain public confidence in law and lawyers, a lawyer should fully and promptly inform the client of material developments in the matters being handled for the client.”

The Comments to both Colo.RPC 1.4 and MR 1.4 use the example of a lawyer who negotiates on behalf of a client, and both comments state that the lawyer should provide the client with all of the relevant facts, inform the client of the other party’s communications, and take all reasonable steps that permit the client to make a decision with regard to offers made by the other party. The Colorado Comment, however, further provides that “[a] lawyer ought to mitigate this decision-making process if the client does not do so.” Both comments state that even if a client has delegated authority to the lawyer, the lawyer must keep the client advised of the status of the matter. The Colorado Comment expands upon this duty and advises the lawyer to “exert best efforts to insure that decisions of the client are made only after the client has been informed of relevant considerations.” Finally, both comments address the adequacy of communication between a lawyer and client, recognizing that it depends, in part, on the nature of the assistance or advice involved. The Colorado Comment expressly states that which is only implied in the Model Rule Comment: “A lawyer should advise the client of the possible legal effect of each alternative course of action.”

1.4:102      Model Code Comparison

The Committee Comment to Colo.RPC 1.4 notes that the Rule states a lawyer’s obligation in an affirmative way, and that it intends “no substantive change” from the provisions of the Code of Professional Responsibility.

1.4:200   Duty to Communicate with Client

Primary Colorado References: CO Rule 1.4(a)
Background References: ABA Model Rule 1.4(a), Other Jurisdictions
Commentary: ABA/BNA § 31.501, ALI-LGL §§ 31, Wolfram §§ 4.5, 4.6

Colo.RPC 1.4 requires attorneys to communicate with clients and to keep clients reasonably informed. Unlike the rules under the former Code of Professional Responsibility, Rule 1.4 requires attorneys to provide clients with all of the information necessary to make an informed decision. See Fleishman, “Legal Malpractice: A Brief History in Time,” 26 Colo. Law. 157, 158 (1997).

Colorado attorneys are disciplined under Colo.RPC 1.4 for a wide variety of misconduct. Examples include: failing to take action for almost two years on a client matter and failing to respond to a client’s telephone calls, see, e.g., People v. Field, 944 P.2d 1252 (Colo. 1997); failing to obtain credit for a criminal defendant’s pre-sentence confinement and failing to respond to that defendant’s calls, see, e.g., People v. Mannix, 936 P.2d 1285 (Colo. 1997); failing to communicate with a client for an entire year, see, e.g., People v. Barbieri, 935 P.2d 12 (Colo. 1997); failing to adequately communicate with a client and allowing a statute of limitations to run, see, e.g., People v. Wright, 947 P.2d 941 (Colo. 1997); abandoning a client, see, e.g., People v. Southern, 832 P.2d 946 (Colo. 1992); and failure to keep a client reasonably informed about the status of a matter, see e.g., People v. Rishel, 954 P.2d 542 (Colo. 1998).

The extent of disciplinary action under Colo.RPC 1.4 varies considerably depending on the seriousness of the violation and the surrounding circumstances. A violation of Rule 1.4 can therefore result in any of the following: public censure, see, e.g., People v. Williams, 936 P.2d 1289 (Colo. 1997) (attorney publicly censured for neglecting a client matter); suspension, see, e.g., People v. Rivers, 933 P.2d 6 (Colo. 1997) (attorney suspended for neglecting client matters and failing to communicate with client); and even disbarment if the violation is serious or coupled with violations of other professional rules, see, e.g., People v. Roybal, 949 P.2d 993 (Colo. 1997) (attorney disbarred for abandoning a client and misappropriating unearned attorney fees); People v. Crist, 948 P.2d 1020 (Colo. 1997) (attorney disbarred for abandoning client and felony narcotics conviction).

As to the duty of the attorney retained by an insurer to advise and inform its insured about matters that may affect the insured’s interests, see CBA Formal Op. 91, Ethical Duty of Attorney Selected by Insurer to Represent Its Insured (Jan. 16, 1993).

CBA Formal Op. 100, Use of Conversion Clauses in Contingent Fee Agreements (June 21, 1997), notes that under Rule 1.4, an attorney has a duty to make reasonable efforts to insure that the client understands the fee agreement. The importance of this duty to communicate was in part the basis for CBA Formal Op. 59, Legal Services Programs (Jan. 23, 1982, addendum 1995) concerning ethical responsibilities of legal services program management and staff attorneys in facing totally eliminated or substantially reduced funding. CBA Formal Op. 22, Recording Conversations (Jan. 26, 1962, addendum 1995) opined that it is improper for an attorney to record by means of a mechanical or electronic device conversations or statements without disclosing that the conversations or statements are being recorded. This opinion makes no distinction between a lawyer’s communications with his clients and with third parties. A Lawyer’s Principles of Professionalism (1990), adopted by the Colorado Bar Association, also states that an attorney shall be punctual in communications.

1.4:300   Duty to Consult with Client

Primary Colorado References: CO Rule 1.4(b)
Background References: ABA Model Rule 1.4(b), Other Jurisdictions
Commentary: ABA/BNA § 31.501, ALI-LGL §§ 31, Wolfram §§ 4.5

While Rule 1.4 does not explicitly state that a lawyer must consult with his client; rather that duty is implicit from the rule and is explicit from the comments. This in turn presents an issue as to on what decisions the lawyer is obligated to consult with the client; indeed, what decisions are for the client to make and what decisions are for the lawyer to make. The Comments do not provide much guidance. See generally Colo.RPC 2.2(a)(1) and (b).

1.4:400   Duty to Inform the Client of Settlement Offers

Primary Colorado References: CO Rule 1.4
Background References: ABA Model Rule 1.4, Other Jurisdictions
Commentary: ABA/BNA § 31.501, ALI-LGL §§ 31, Wolfram §§ 4.5

A lawyer representing a client in a litigation matter has a duty to advise a client of settlement offers received, and to explain the ramifications of the offer and the alternatives. Scognamillo v. Olsen, 795 P.2d 1357 (Colo. App. 1990); Miller v. Byrne, 916 P.2d 566, 574 (Colo. App. 1995). The legal duty of a lawyer to advise a client of a settlement offer extends to offers concerning liabilities for which an insurance carrier is responsible, ambiguous offers, and perceived invalid offers, although not to offers if the client has no power of acceptance. Miller v. Byrne, 916 P.2d 566, 574 (Colo. App. 1995). There do not appear to be any decisions enforcing the ethical duty, as distinguished from a professional negligence duty.