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Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.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

II. COUNSELOR

2.1   Rule 2.1 Advisor

2.1:100   Comparative Analysis of Colorado Rule

Primary Colorado References: CO Rule 2.1
Background References: ABA Model Rule 2.1, Other Jurisdictions
Commentary:

2.1:101      Model Rule Comparison

Colo.RPC 2.1 is identical to MR 2.1, with one exception. The Colorado Rule states that

[i]n a matter involving or expected 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.

Colorado adopted the Comment to MR 2.1 with only one minor change and two additional paragraphs. Under the heading “Offering Advice,” in the sentence stating that “[a] lawyer ordinarily has no duty to initiate investigation of a client’s affairs . . .” the Colorado Comment uses the word “mitigate” instead of “initiate.” (This may simply be a typographical error in the adoption or publication of the Colorado Rules.)

The first additional paragraph under “Offering Advice” is identical to former Colo.Code EC 7-8, and requires lawyers to use their best efforts to ensure that clients’ decisions are made with knowledge of all relevant considerations, including legal, as well as non-legal considerations (which may include advice based on the lawyer’s experience, objective viewpoint, and any moral considerations the lawyer sees fit to discuss with the client). The paragraph reminds lawyers that, in the end, “the decision whether to forego legally available objectives or methods because of non-legal factors is ultimately for the client and not for the lawyer.”

The second additional paragraph under “Offering Advice” elaborates on the Colorado addition to the text of Model Rule 2.1 regarding advising the client concerning alternative dispute resolution.

2.1:102      Model Code Comparison

The Committee Comment to Colo.RPC 2.1 explains that the Colorado Rule raises the consideration of the providing of non-legal advice to a rule, whereas the Colorado Code treated the subject only as an aspiration (see Colo.Code EC 7-8).

2.1:200   Exercise of Independent Judgment

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

In CBA Formal Op. 87, Collaboration with Non-Lawyers in Preparation and Marketing of Estate Planning Documents (adopted July 14, 1990, revised Dec. 14, 1991, addendum 1995), the Colorado Bar Association discussed a lawyer collaborating with a nonlawyer in the preparation and marketing of estate planning documents. Opining under the Code, the Committee noted

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 lawyer’s 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 ‘legal’ or ‘nonlegal’ in nature, the lawyer violates DR 5-107 . . . .

DR 5-107 provided that a lawyer “shall 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.”

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: “In 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.” The Comment notes that “depending 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.” 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 lawyer’s 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.RPC 2.2 is identical to MR 2.2, with two exceptions. Colo.RPC 2.2(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 client’s consent in writing.

Colorado adopted in full the Comment to MR 2.2. Colorado made one modification to the “Consultation” section of the Comment, however, reiterating the Colorado requirement that a client’s consent be in writing. The Colorado Committee Comment elaborates on the changes between Colo.RPC 2.2 and MR 2.2.

2.2:102      Model Code Comparison

Neither the Model Code nor the Colorado Code contained a provision comparable to Colo.RPC 2.2.

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 clients’ 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 “Confidentiality Walls” (May 18, 1991, amended April 18, 1992).

2.2:400   Communication During Intermediation

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

Colo.RPC 2.2(b) requires that while acting as intermediary, the lawyer shall consult with each client concerning the decisions to be made and the considerations relevant in making them, so that each client can make adequately informed decisions. See also Colo.RPC 1.4(b). Colorado does not appear to have any reported decision or ethics opinion interpreting or applying this provisions. See generally, decisions under Colo.RPC 1.7, Conflicts of Interest.

2.2:500   Consequences of a Failed Intermediation

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

Colorado does not have any reported decisions or ethics opinions dealing with subsection (c) of Rule 2.2, withdrawal as intermediary.

2.3   Rule 2.3 Evaluation for Use by Third Persons

2.3:100   Comparative Analysis of Colorado Rule

Primary Colorado References: CO Rule 2.3
Background References: ABA Model Rule 2.3, Other Jurisdictions
Commentary:

2.3:101      Model Rule Comparison

Colo.RPC 2.3 and its Comment are identical to the Model Rule. The Colorado Committee Comment explains that the Colorado Rule “codifies current practice with respect to third-party (non-client) use of, and reliance upon, a lawyer’s services.”

2.3:102      Model Code Comparison

There is no counterpart to Colo.RPC 2.3 in the Model Code.

2.3:200   Undertaking an Evaluation for a Client

Primary Colorado References: CO Rule 2.3
Background References: ABA Model Rule 2.3, Other Jurisdictions
Commentary: ABA/BNA § 71:701, ALI-LGL § 152, Wolfram § 13.4

[The discussion of this topic has not yet been written.]

2.3:300   Duty to Third Persons Who Rely on Lawyer's Opinion [see also 1.1:420]

Primary Colorado References: CO Rule 2.3
Background References: ABA Model Rule 2.3, Other Jurisdictions
Commentary: ABA/BNA § 71:701, ALI-LGL § 152, Wolfram § 13.4.4

This topic is covered at 1.1:400, 410 and 420.

2.3:400   Confidentiality of an Evaluation

Primary Colorado References: CO Rule 2.3
Background References: ABA Model Rule 2.3, Other Jurisdictions
Commentary: ABA/BNA § 71:701, ALI-LGL § 152, Wolfram § 13.4.3

[The discussion of this topic has not yet been written.]

2.4   Rule 2.4 Lawyer Serving as a Third-Party Neutral

2.4:100   Comparative Analysis of Colorado Rule

Primary Colorado References:
Background References: ABA Model Rule 2.4, Other Jurisdictions
Commentary:

MR 2.4 was added in February 2002. The Reporter's explanation of the change reads as follows:

The role of third-party neutral is not unique to lawyers, but the Commission recognizes that lawyers are increasingly serving in these roles. Unlike nonlawyers who serve as neutrals, lawyers may experience unique ethical problems, for example, those arising from possible confusion about the nature of the lawyer's role. The Commission notes that there have been a number of attempts by various organizations to promulgate codes of ethics for neutrals (e.g., aspirational codes for arbitrators or mediators or court enacted rules governing court-sponsored mediators), but such codes do not typically address the special problems of lawyers. The Commission's proposed approach is designed to promote dispute resolution parties' understanding of the lawyer-neutral's role.

2.4:101      Model Rule Comparison

Colorado has not adopted the new model rule.

2.4:200   Definition of "Third-Party Neutral"

Primary Colorado References:
Background References: ABA Model Rule 2.4, Other Jurisdictions
Commentary:

Colorado has not adopted the new model rule.

2.4:300   Duty to Inform Parties of Nature of Lawyer's Role

Primary Colorado References:
Background References: ABA Model Rule 2.4, Other Jurisdictions
Commentary:

Colorado has not adopted the new model rule.