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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.

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Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.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

1.16   Rule 1.16 Declining or Terminating Representation

1.16:100   Comparative Analysis of Colorado Rule

Primary Colorado References: CO Rule 1.16
Background References: ABA Model Rule 1.16, Other Jurisdictions
Commentary:

The discussion of this rule is current through October 31, 2000. In addition to the authority discussed hereafter, see CBA Formal Op. 40, Accepting Case Handled by Another Lawyer (Adopted February 3, 1968, addendum 1995); CBA Formal Op. 59, Legal Services Program (Adopted January 23, 1982, addendum 1995); (withdraw or declining representation when funding reduced). CBA Formal Op. 104, Surrender of Papers to the Client Upon Termination of the Representation (Adopted April 17, 1999); CBA Abstract 96.97-1 (rights of former client to files).

1.16:101      Model Rule Comparison

Colo.RPC 1.16(a), (c), and (d) are identical to the corresponding paragraphs in the Model Rule. However, the Colorado Supreme Court made significant changes to paragraph (b), which addresses circumstances supporting permissive withdrawal. Both the Colorado and Model Rules provide, albeit using different language, that a lawyer may withdraw under paragraph (b) only if the tribunal in which a matter is pending has approved the withdrawal. MR 1.16(b) permits withdrawal "if withdrawal can be accomplished without material adverse effect on the interests of the client," or under any of the circumstances listed in that paragraph; the Colorado Rule however, does not include the language quoted above, but instead restricts permissive withdrawal to the specific situations identified in Colo.RPC 1.16(b).

There also are differences in the circumstances listed in paragraph (b) of the Colorado and Model Rules that would permit withdrawal. MR 1.16 includes no direct counterpart to Colo.RPC 1.16(b)(1)(A), which permits a lawyer to withdraw (or to request leave to withdraw from a tribunal) if the client "insists upon presenting a claim or defense that is not warranted under existing law and cannot be supported by good faith argument for an extension, modification, or reversal of existing law." Colo.RPC 1.16(b)(1)(A) and (B) permit withdrawal (or a request to withdraw), respectively, where the client "personally seeks to pursue an illegal course of conduct," or "insists that the lawyer pursue a course of conduct that is illegal or that is prohibited by these rules"; these provisions correspond to MR 1.16(b)(1) and (2), which permit withdrawal where the client "persists in a course of action involving the lawyer's services that the lawyer reasonably believes is criminal or fraudulent" or "has used the lawyer's services to perpetrate a crime or fraud." Colo.RPC 1.16(b)(1)(D), which permits withdrawal (or a request to withdraw) where the client "by other conduct renders it unreasonably difficult for the lawyer to carry out the lawyer's employment effectively," corresponds to a portion of MR 1.16(b)(5), which permits withdrawal where "the representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client." There is no direct counterpart to Colo.RPC 1.16(b)(1)(E), which permits withdrawal (or a request to withdraw) where the client "insists, in a matter not pending before a tribunal, that the lawyer engage in conduct that is contrary to the judgment and advice of the lawyer but not prohibited by these rules"; however, MR 1.16(b)(3) does allow withdrawal where the client "insists upon pursuing an objective that the lawyer considers repugnant or imprudent." Colo.RPC 1.16(b)(1)(F), addressing withdrawal where the client "deliberately disregards an agreement or obligation to the lawyer as to expenses or fees," is similar to MR 1.16(b)(4), which states that a lawyer may withdraw (or request to withdraw) where "the client fails substantially to fulfill an obligation to the lawyer regarding the lawyer's services." However, the Model Rule requires the lawyer to give the client "reasonable warning that the lawyer will withdraw unless the obligation is fulfilled." MR 1.16(b)(6) provides a final basis for permissive withdrawal: where "other good cause for withdrawal exists." The Colorado counterpart, Colo.RPC 1.16(b)(4), recognizes the "other good cause" basis only in proceedings pending before tribunals, and then only if "the lawyer believes in good faith . . . that the tribunal will find the existence of other good cause for withdrawal."

The Committee Comment to Colo.RPC 1.16 explains that the revisions to paragraph (b) are patterned after DR 2-110, "[t]he concept of permitting withdrawal where 'other good cause for withdrawal exists,' found in the ABA Model Rules has been deleted, and "[t]he Committee believes that the public is best served when a specific basis for withdrawal is required."

There is only one change in the Comment to Colo.RPC 1.16, and it is minor. In the second sentence of the second paragraph under the heading "Discharge," the Colorado Comment substitutes the phrase "the client to represent himself" for the phrase "self-representation by the client" in the Model Rule Comment.

1.16:102      Model Code Comparison

The ABA Model Rules of Professional Conduct (1998 Ed.), Model Code comparison of Rule 1.16 states:

With regard to paragraph (a), DR 2-109(A) provided that a lawyer “shall not accept employment . . . if he knows or it is obvious that [the prospective client] wishes to . . . [b]ring a legal action . . . or otherwise have steps taken for him, merely for the purpose of harassing or maliciously injuring any person . . . .” Nor may a lawyer accept employment if the lawyer is aware that the prospective client wishes to “[p]resent a claim or defense . . . that is not warranted under existing law, unless it can be supported by good faith argument for an extension, modification, or reversal of existing law.” DR 2-110(B) provided that a lawyer “shall withdraw from employment . . . if:

“(1)   He knows or it is obvious that his client is bringing the legal action . . . or is otherwise having steps taken for him, merely for the purpose of harassing or maliciously injuring any person.

“(2)   He knows or it is obvious that his continued employment will result in violation of a Disciplinary rule.

“(3)   His mental or physical condition renders it unreasonably difficult for him to carry out the employment effectively.

“(4)   He is discharged by his client.”

With regard to paragraph (b), DR 2-110(C) permitted withdrawal regardless of the effect on the client if:

“(1)   His client: (a) Insists upon presenting a claim or defense that is not warranted under existing law and cannot be supported by good faith argument for an extension, modification, or reversal of existing law; (b) Personally seeks to pursue an illegal course of conduct; (c) Insists that the lawyer pursue a course of conduct that is illegal or that is prohibited under the Disciplinary Rules; (d) By other conduct renders it unreasonably difficult for the lawyer to carry out his employment effectively; (e) Insists, in a matter not pending before a tribunal, that the lawyer engage in conduct that is contrary to the judgment and advice of the lawyer but not prohibited under the Disciplinary Rules; (f) Deliberately disregards an agreement or obligation to the lawyer as to expenses and fees.

“(2)   His continued employment is likely to result in a violation of a Disciplinary Rule.

“(3)   His inability to work with co-counsel indicates that the best interest of the client likely will be served by withdrawal.

“(4)   His mental or physical condition renders it difficult for him to carry out the employment effectively.

“(5)   His client knowingly and freely assents to termination of his employment.

“(6)   He believes in good faith, in a proceeding pending before a tribunal, that the tribunal will find the existence of other good cause for withdrawal.”

With regard to paragraph (c), DR 2-110(A)(1) provided: “If permission for withdrawal from employment is required by the rules of a tribunal, the lawyer shall not withdraw . . . without its permission.”

The provisions of paragraph (d) are substantially identical to DR 2-110(A)(2) and (3).

1.16:200   Mandatory Withdrawal

Primary Colorado References: CO Rule 1.16(a)
Background References: ABA Model Rule 1.16(a), Other Jurisdictions
Commentary: ABA/BNA § 31:1001, ALI-LGL § 44, Wolfram § 9.54

Rule 1.16(a) prescribes that a lawyer must withdraw from representation if: (1) the representation will result in the violation of the rules of professional conduct or other law; (2) the lawyer’s physical or mental condition materially impairs the lawyer’s ability to represent the client; or (3) the lawyer is discharged. In CBA Abstract Op. 95.96-1, three clients retained Lawyer to defend a civil action. Lawyer advised that while he was competent in trial work, he did not have expertise in the specialized area of the litigation, and needed to associate with counsel competent in the specialized area of law. The clients responded that they were short of funds, intended to raise funds for settlement, and directed Lawyer to undertake the absolute minimum to defend the case. Two years later, Lawyer had complied, the clients had been unable to raise funds for settlement, and, with trial three months away, it was clear that the case would not settle. The clients had no funds for trial or to associate with co-counsel, and instructed the lawyer to forbear from preparing the case for trial.

The Committee determined that the lawyer’s withdrawal was mandatory under Rule 1.16(a) as continued representation violates Rules 1.1 (competency) and 1.2 (scope and objectives of representation). The Committee recognized the requirement of court approval of withdrawal. The Committee noted that if the Court denied the motion to withdraw, Rule 1.16(c) required Lawyer to continue representation, notwithstanding good cause for withdrawal. If not permitted to withdraw, Lawyer should again address the issue of whether it is necessary to retain co-counsel. This latter statement was made without further explanation.

1.16:210      Discharge by Client

The Colorado Supreme Court has confirmed the absolute right of a client to discharge a lawyer without case. Olsen and Brown v. City of Englewood, 889 P.2d 673, 676 (Colo. 1995); Colo.RPC 1.2, comment and 1.16(a)(3); See also Golightly-Howell v. Oil, Chemical & Atomic Workers Int’l Union, 806 F.Supp. 921 (D. Colo. 1992).

As to the lawyer’s right to compensation under a contingent fee agreement upon being discharged by a client, with or without cause, see Section 1.5:230. See also CBA Formal Op. 100, Use of Conversion Clauses in Contingent Fee Agreements (June 21, 1997).

As to a lawyer’s right to a lien on the client’s papers, see Section 1.5:240 and CBA Formal Op. 82, Assertion of Attorneys Retaining Lien on Client’s Papers (April 15, 1989, Addendum 1995).

As to the duty of a lawyer to surrender the client’s file upon termination of the representation, see CBA Formal Op. 104, Surrender of Papers to the Client Upon Termination of the Representation (April 17, 1999).

1.16:220      Incapacity of Lawyer

Colorado does not appear to have any published case law or ethics opinions relevant to this subject. See generally, Section 0.2:240, and CRCP Ch. 20, Rule 251.1, et seq.

1.16:230      Withdrawal to Avoid Unlawful Conduct

Colorado does not appear to have any published case law or ethics opinions relevant to this subject.

1.16:240      Legal Action for the Purpose of Harassing or Maliciously Injuring Any Person

CRCP 11(a) defines that

,The signature of an attorney [on a pleading] constitutes a certificate by him that he has read the pleading; that to the best of his knowledge, information, and belief formed after reasonable inquiry, it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.

In Maul v. Shaw, 843 P.2d 139 (Colo. App. 1992), the Colorado Court of Appeals defined a lawyer’s duties under CRCP 11 as:

1. Make a reasonable inquiry into the facts and the law before a pleading is filed.

2. Based upon this investigation (of facts and law), the signing lawyer must reasonably believe that the pleading is well grounded in fact.

3. The legal theory asserted in the pleading must be based on existing legal principles or a good faith argument for the modification of existing law; and

4. The pleading must not be filed for the purpose of causing delay, harassment, or an increase in the cost of litigation.

This standard was refined in Switzer v. Giron, 852 P.2d 1320 (Colo. App. 1993) wherein the Court stated that the focus of Rule 11 is on what should have been done before the pleading was filed. Plaintiff was involved in a vehicle collision with a person who identified himself as “Robert Giron”. Plaintiff’s lawyer could find in the phone book only a “Roberto Giron”. Plaintiff and her attorney went to “Roberto’s” place of employment, and plaintiff advised her attorney that she was “uncertain as to whether this was the same person.” Plaintiff sued “Roberto”. “Roberto” informed plaintiff’s attorney that he was not involved in the accident, and furnished his employer’s statement that Roberto was at work on the date and time of the accident. Nevertheless, plaintiff deposed Roberto, who again denied involvement. Plaintiff therefore requested dismissal which the Court granted.

Roberto then requested an award of attorneys’ fees under CRCP 11. The trial court awarded fees, and the Court of Appeals affirmed, noting that determining the proper defendant is “the most basic factual inquiry in any lawsuit.” Generally, filing a suit in order to employ discovery to determine whether a claim exists is a violation of CRCP 11 Ý the requirement of pre-filing factual inquiry is designed to prevent parties from suing first and learning later whether they have a case.

See also FRCP 11. The Court may sanction an attorney for violation of this rule, including payment to the other party of reasonable expenses, including legal fees, caused by the violation. In addition, CRS § 13-17-101, et seq. provides for the recovery of attorneys’ fees incurred by reason of the frivolous, groundless or vexatious actions of opposing counsel. A substantial body of case law exists under this statute.

1.16:300   Permissive Withdrawal

Primary Colorado References: CO Rule 1.16(b)
Background References: ABA Model Rule 1.16(b), Other Jurisdictions
Commentary: ABA/BNA § 31:1101, ALI-LGL § 44, Wolfram § 9.5.3

In the context of withdrawal from representation of a client in litigation, the rules of court govern, in addition to Rule 1.16(b). Specifically see C.R.Crim.P. 44(c)-(e); CRCP 121, Section 1-1, §§2-4; and D.C. Colo. LR 83.5, D.

Rule 83.5 of the local rules of the United States District Court for the District of Colorado provides an attorney who has appeared in a case “may seek to withdraw on motion showing good cause.”

CRCP 121, aside from procedural requirements, simply provides that an attorney may withdraw from a case only upon order of court in the sound discretion of the Court. The comments note that when an attorney is providing limited representation to a pro se party Ý see CRCP 11(b), or 311(b), and Colo.RPC 1.2 Ý the requirement of court approval is not necessary because the attorney has not “appeared” in the case.

Lastly, C.R.Crim.P. 44 prescribes that “withdrawal of a lawyer in a criminal case is a matter within the sound discretion of the court. In exercising such discretion, the court shall balance the need for orderly administration of justice with the facts underlying the request.” The withdrawal can be only upon order of court.

1.16:310      Withdrawal to Undertake Adverse Representation

Colorado does not appear to have any published case law or ethics opinions relevant to this subject.

1.16:320      Circumstances Justifying Discretionary Withdrawal

Colo.RPC 1.16(b) defines the ethical grounds for withdrawing from representation (or requesting permission to withdraw in matters pending before a tribunal). However, when court rules apply, discretion on the part of the court (at least in most cases) is the byword. For example, in People v. Rocha, 872 P.2d 1285 (Colo. App. 1993), withdrawal was denied because there was a reasonable basis for concluding that the attorney-client relationship had not deteriorated to the extent that counsel could not give effective assistance in the presentation of a defense. In that case, the circumstances giving rise to the request to withdraw was the refusal of defense counsel to call certain witnesses. The Court noted that any new counsel may be confronted with the same irreconcilable conflict.

1.16:400   Order by Tribunal to Continue Representation

Primary Colorado References: CO Rule 1.16(c)
Background References: ABA Model Rule 1.16(c), Other Jurisdictions
Commentary: ABA/BNA § 31:1101, ALI-LGL § 44, Wolfram § 9.5.1

There appear to be no reported Colorado decisions or ethics opinions on this subject. However, as to denial of a motion to withdraw, see other sections herein.

1.16:500   Mitigating Harm to Client Upon Withdrawal

Primary Colorado References: CO Rule 1.16(d)
Background References: ABA Model Rule 1.16(d), Other Jurisdictions
Commentary: ABA/BNA § 31:1201, ALI-LGL §§ 44, 45, Wolfram § 9.5.1

Colorado does not appear to have any published case law or ethics opinions relevant to this subject.

1.16:600   Fees on Termination

Primary Colorado References: CO Rule 1.16(d)
Background References: ABA Model Rule 1.16(d), Other Jurisdictions
Commentary: ABA/BNA §§ 31:701, 31:1001, 31:1101 , ALI-LGL §§ 43, 52, Wolfram § 9.5

See Section 1.5:230. See CBA Formal Op. 100, Use of Conversion Clauses in Contingent Fee Agreements (June 21, 1997). This lengthy ethics opinion defines the ethical considerations underlying such a clause as (1) the client’s absolute right to discharge counsel under 1.16(a)(3), (2) that fees must be reasonable under Rule 1.5, and (3) the attorney’s duty to make reasonable efforts to ensure that the client understands the fee agreement.

The opinion continues by defining the factors affecting whether conversion clauses are relevant as including (1) whether the clause provides for conversion even if the client terminates the contingent fee agreement with cause or if the attorney terminates the agreement without cause; (2) whether the clause provides for conversion to fees based on quantum meruit principles or defines the alternate basis for fees, e.g., a fixed amount or a lodestar fee; (3) whether the fees computed on the alternative basis are unreasonable in amount, either facially or under the circumstances that develop in the particular case; (4) whether the clause provides for immediate payment on an alternate basis, before the contingency occurs or even in the absence of the contingency occurring; (5) whether the clause provides for a cap, under which the alternate basis for fees cannot exceed the contingent fee amount; and (6) the sophistication of the client.

1.16:610      Termination of Lawyer's Authority [see 1.2:270]

Upon termination of the attorney-client relationship, the attorney can no longer act to bind the client. Barry v. Ashley Anderson, P.C., 718 F.Supp. 1492 (D. Colo. 1989).