Colorado Legal Ethics

Whenever a lawyer and a non-lawyer collaborate to prepare estate planning and funding documents, there is a danger that the non-lawyer may impermissibly interfere with the lawyerÕs exercise of independent professional judgment on behalf of the client. Where the lawyer is not in a position to exercise control over the non-lawyer, the non-lawyer solicits the client, and tasks are allocated between the lawyer and non-lawyer based on their mutual agreement as to which tasks are ÔlegalÕ or ÔnonlegalÕ in nature, the lawyer violates DR 5-107 . . . .

DR 5-107 provided that a lawyer Òshall not permit a person who recommends, employs, or pays him to render legal services for another to direct or regulate his professional judgment in rendering such legal service.Ó

In CBA Formal Op. 105, Opinion on Temporary Lawyers (May 22, 1999), the CBA Ethics Committee noted that the temporary lawyer must consider and observe all ethical duties arising from the attorney-client relationship, including the exercise of independent professional judgment under Colo.RPC 2.1, notwithstanding the temporary nature of the relationship or the interposition of the employing law firm.

2.1:300   Non-Legal Factors in Giving Advice

¥ Primary Colorado References: CO Rule 2.1
¥ Background References: ABA Model Rule 2.1, Other Jurisdictions
¥ Commentary: ABA/BNA ¤ 31:701, ALI-LGL ¤ 151, Wolfram ¤ 4.3

Colorado added to Rule 2.1 an additional sentence: ÒIn a matter involving or expecting to involve litigation, a lawyer should advise the client of alternative forms of dispute resolution which might reasonably be pursued to attempt to resolve the legal dispute or to reach the legal objective sought.Ó The Comment notes that Òdepending upon the circumstances, it may be appropriate for the lawyer to discuss with the client factors such as cost, speed, effects on existing relationships, confidentiality and privacy, scope of relief, statutes of limitation, and relevant procedure rules and statutes.Ó This provision was added to emphasize the importance of alternative dispute resolution, albeit somewhat unique in being defined as an ethical duty as distinguished from a professional negligence duty. Colorado has not had any reported decisions or ethics opinions applying this provision .

Similarly, Colorado has not had any reported decisions or ethics opinions discussing a lawyerÕs advice referencing moral, economic, social and political factors.

2.2   Rule 2.2 Intermediary

2.2:100   Comparative Analysis of Colorado Rule

¥ Primary Colorado References: CO Rule 2.2
¥ Background References: ABA Model Rule 2.2, Other Jurisdictions
¥ Commentary:

2.2:101      Model Rule Comparison

Colo.RPCÊ2.2 is identical to MR 2.2, with two exceptions. Colo.RPCÊ2.2(a)(1) requires a lawyer acting as an intermediary between two clients to (i) make full disclosure to each client in writing, and (ii) obtain each clientÕs consent in writing.

Colorado adopted in full the Comment to MR 2.2. Colorado made one modification to the ÒConsultationÓ section of the Comment, however, reiterating the Colorado requirement that a clientÕs consent be in writing. The Colorado Committee Comment elaborates on the changes between Colo.RPCÊ2.2 and MR 2.2.

2.2:102      Model Code Comparison

Neither the Model Code nor the Colorado Code contained a provision comparable to Colo.RPCÊ2.2.

2.2:200   Relationship of Intermediation to Joint Representation

¥ Primary Colorado References: CO Rule 2.2
¥ Background References: ABA Model Rule 2.2, Other Jurisdictions
¥ Commentary: ABA/BNA ¤ 51:1501, ALI-LGL ¤ 153, Wolfram ¤¤ 8.7, 13.6

Apparently there are no CBA Formal Opinions or Colorado reported cases on this topic.

2.2:300   Preconditions to Becoming an Intermediary

¥ Primary Colorado References: CO Rule 2.2
¥ Background References: ABA Model Rule 2.2, Other Jurisdictions
¥ Commentary: ABA/BNA ¤ 51:1501, ALI-LGL ¤ 153, Wolfram ¤ 8.7, 13.6

Rule 2.2 defines three requirements to be met in order for a lawyer to serve as an intermediary between two or more clients: The lawyer must (1) obtain the written consent of the clients to the common representation after consulting with and providing full disclosure in writing to each client concerning the implications of common representation, including the advantages, risks and effect on the attorney-client privilege; (2) reasonably believe that the matter can be resolved on terms compatible with the clientsÕ best interests, that each client will be able to make adequately informed decisions in the matter and that there is little risk of material prejudice to the interests of any of the clients if the contemplated resolution is unsuccessful; and (3) reasonably believe that the common representation can be undertaken impartially and without improper effect on other responsibilities the lawyer has to any of the clients.

See generally CBA Formal Op. 45, Representation of Client by Part-Time Judge (Revised Opinion June 16, 1984, addendum 1996); CBA Formal Op. 48, Representation of Public Body, Conflict of Interest (June 3, 1972, revised May 18, 1997); CBA Formal Op. 57, Conflicts of Interest (March 21, 1981, addendum 1995); CBA Ethics Op. 88, Use and Misuse of ÒConfidentiality WallsÓ (May 18, 1991, amended April 18, 1992).