skip navigation
search

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Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.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

V. LAW FIRMS AND ASSOCIATIONS

5.1   Rule 5.1 Responsibilities of a Partner and Supervisory Lawyer

5.1:100   Comparative Analysis of Colorado Rule

Primary Colorado References: CO Rule 5.1
Background References: ABA Model Rule 5.1, Other Jurisdictions
Commentary:

5.1:101      Model Rule Comparison

Colo.RPC 5.1 and its Comment are identical to MR 5.1 and its Comment.

5.1:102      Model Code Comparison

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

5.1:200   Duty of Partners to Monitor Compliance with Professional Rules

Primary Colorado References: CO Rule 5.1(a)
Background References: ABA Model Rule 5.1(a), Other Jurisdictions
Commentary: ABA/BNA § 91:201, ALI-LGL § 12, Wolfram § 16.2

To date, Colorado courts have not considered this section and no Colorado Bar Association formal or informal ethics opinion has been written concerning this section.

5.1:300   Monitoring Duty of Supervising Lawyer

Primary Colorado References: CO Rule 5.1(b)
Background References: ABA Model Rule 5.1(b), Other Jurisdictions
Commentary: ABA/BNA § 91:201, ALI-LGL § 12, Wolfram § 16.2

To date, Colorado courts have not considered this section and no Colorado Bar Association formal or informal ethics opinion has been written concerning this section.

5.1:400   Failing to Rectify the Misconduct of a Subordinate Lawyer

Primary Colorado References: CO Rule 5.1(c)
Background References: ABA Model Rule 5.1(c), Other Jurisdictions
Commentary: ABA/BNA § 91:201, ALI-LGL § 5, Wolfram § 16.2

To date, Colorado courts have not considered this section and no Colorado Bar Association formal or informal ethics opinion has been written concerning this section.

5.1:500   Vicarious Liability of Partners

Primary Colorado References: CO Rule 5.1
Background References: ABA Model Rule 5.1, Other Jurisdictions
Commentary: ABA/BNA § 91:201, ALI-LGL §§ 8, 10

To date, Colorado courts have not considered this section and no Colorado Bar Association formal or informal ethics opinion has been written concerning this section. See also Section 1.1:600, Vicarious Liability.

5.2   Rule 5.2 Responsibilities of a Subordinate Lawyer

5.2:100   Comparative Analysis of Colorado Rule

Primary Colorado References: CO Rule 5.2
Background References: ABA Model Rule 5.2, Other Jurisdictions
Commentary:

5.2:101      Model Rule Comparison

Colo.RPC 5.2 and its Comment are identical to MR 5.2. The Colorado comments to Rule 5.2 are identical to MR 5.2 comments.

5.2:102      Model Code Comparison

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

5.2:200   Independent Responsibility of a Subordinate Lawyer

Primary Colorado References: CO Rule 5.2(a)
Background References: ABA Model Rule 5.2(a), Other Jurisdictions
Commentary: ABA/BNA § 91:201, ALI-LGL § 5, Wolfram § 16.2

To date, Colorado courts have not considered this section and no Colorado Bar Association formal or informal ethics opinion have been written concerning this section.

5.2:300   Reliance on a Supervisor's Resolution of Arguable Ethical Issues

Primary Colorado References: CO Rule 5.2(b)
Background References: ABA Model Rule 5.2(b), Other Jurisdictions
Commentary: ABA/BNA § 91:201, ALI-LGL § 5, Wolfram § 16.2

To date, Colorado courts have not considered this section and no Colorado Bar Association formal or informal ethics opinion have been written concerning this section.

5.3   Rule 5.3 Responsibilities Regarding Nonlawyer Assistants

5.3:100   Comparative Analysis of Colorado Rule

Primary Colorado References: CO Rule 5.3
Background References: ABA Model Rule 5.3, Other Jurisdictions
Commentary:
CO Commentary: Fleishman, Ethical Responsibilities Regarding Non-Lawyer Assistance, 44 Trial Talk 26 (Nov. 1995)

5.3:101      Model Rule Comparison

Colo.RPC 5.3 and its Comment are identical to the Model Rule and its Comment.

The Committee Comment emphasizes that all lawyers are responsible for the acts of those they supervise, regardless of the lawyer’s status as partner, associate or otherwise.

5.3:102      Model Code Comparison

DR 4-101(D) provided that a lawyer “shall exercise reasonable care to prevent his employees, associates, and others whose services are utilized by him from disclosing or using confidences or secrets of a client . . . .” Similarly, DR 7-107(J) provided that “[a] lawyer shall exercise reasonable care to prevent his employees and associates from making an extrajudicial statement that he would be prohibited from making under DR 7-107.”

5.3:200   Duty to Establish Safeguards

Primary Colorado References: CO Rule 5.3(a)
Background References: ABA Model Rule 5.3(a), Other Jurisdictions
Commentary: ABA/BNA § 91:201, ALI-LGL §§ 4, 5, Wolfram § 16.3
CO Commentary: Fleishman, Ethical Responsibilities Regarding Non-Lawyer Assistance, 44 Trial Talk 26 (Nov. 1995)

In instances where the use of lay legal assistants by the attorney would not constitute aiding in the unauthorized practice of law, or where lay representation is expressly authorized by the Supreme Court, the attorney must ensure certain conduct by the legal assistant. CBA Formal Op. 79, Use of Legal Assistants in Client Representation (Feb. 18, 1989, addendum 1995). Specifically, the assistant must possess the requisite knowledge, judgment and skill necessary for proper and competent representation of the client’s interests under all the circumstances. Id.

The CBA Ethics Committee recognizes the value of using legal assistants to increase the attorney’s ability to provide quality professional services at a reasonable cost. CBA Formal Op. 61, Legal Assistants (Oct. 23, 1982, addendum 1995). Opinion 61 specifically addresses the ethical guidelines for a lawyer in directing legal assistants who are not licensed lawyers. The opinion addresses seven general responsibilities of the supervising attorney.

1. A lawyer shall ascertain the assistant’s abilities, limitations and training, and must limit the assistant’s duties and responsibilities to those that can be competently performed in view of those abilities, limitations and training.

2. A lawyer shall educate and train assistants with respect to the ethical standards which apply to the lawyer.

3. A lawyer is responsible for monitoring and supervising the conduct of assistants to prevent the violation of the ethical standards which apply to the lawyer, and the lawyer is responsible for assuring that assistants do not do anything which the lawyer could not do.

4. A lawyer shall continually monitor and supervise the work of assistants in order to assure that the services rendered by the assistant are performed competently and in a professional manner.

5. A lawyer is responsible for assuring that the assistant does not engage in the unauthorized practice of law.

6. A lawyer shall assume responsibility for the improper conduct of assistants and must take appropriate action to prevent recurrence of improper behavior and activities.

7. Assistants who deal directly with lawyer’s clients must be identified to those clients as nonlawyers, and the lawyer is responsible for obtaining the understanding of the clients with respect to the role of and the limitations which apply to those assistants.   

Id. There are no Colorado cases that specifically address an attorney’s duty to establish safeguards.

5.3:300   Duty to Control Nonlawyer Assistants

Primary Colorado References: CO Rule 5.3(b)
Background References: ABA Model Rule 5.3(b), Other Jurisdictions
Commentary: ABA/BNA § 21:8601, ALI-LGL §§ 4, 5, Wolfram § 16.3

People v. Stewart, 892 P.2d 875 (Colo. 1995), involved an attorney who allowed clients to meet first with her nonlawyer assistant, who collected a retainer.. In some cases, the nonlawyer assistant dispensed legal advice to the clients. Allowing clients to meet repeatedly with the nonlawyer assistant and to receive legal advice from him evidenced the attorney’s failure to properly supervise and monitor her assistants and constituted a violation of Colo.RPC 5.3(b) and (c). The attorney charged with these and other violations of the Colorado Rules of Professional Conduct was suspended from the practice of law for three years (she suffered from a mental disorder that caused the misconduct). Id.

5.3:400   Responsibility for Misconduct of Nonlawyer Assistants

Primary Colorado References: CO Rule 5.3(c)
Background References: ABA Model Rule 5.3(c), Other Jurisdictions
Commentary: ABA/BNA § 91:201, ALI-LGL §§ 4, 5, Wolfram § 16.3
CO Commentary: Fleishman, Ethical Responsibilities Regarding Non-Lawyer Assistance, 44 Trial Talk 26 (Nov. 1995)

See the discussion of People v. Stewart, 892 P.2d 875 (Colo. 1995) supra.

In People v. Gennings, 808 P.2d 839, 844, fn. 4 (Colo. 1991), the Supreme Court stated that the District Attorney did not violate the Code of Professional Responsibility by commissioning a nonattorney to conduct a polygraph examination who allegedly coerced an inculpatory statement from a defendant through improper means. The Court noted that the examiner was acting at the request of and as an agent of the District Attorney’s office in administering the polygraph examination to the defendant. “The District Attorney, as her principal, could be responsible for any misconduct on her part if the District Attorney ordered or ratified the misconduct.” The Court cited MR 5.3, Colorado not yet having adopted it.

See also Abstract 98/99-05 (Private investigator retained by attorney secretly tape-recorded a witness interview). In CBA Formal Op. 84, Listing of Support Personnel Names on Letterhead and Business Cards (Feb. 26, 1990, addendum 1995), the Colorado Bar Association opined that a law firm providing business cards to nonlawyer employees or placing nonlawyers’ names on letterhead is responsible for the use to which nonlawyer employees put such business cards or letterheads. The Committee further noted that a lawyer may not avoid his or her ethical responsibility with respect to nonlawyer assistants by claiming the violation was the responsibility of a nonlawyer employee. “A lawyer is responsible for the ethical conduct of such personnel. [DR 3-101(A) and Colorado Ethics Opinion (Oct. 23, 1982)].”

Similarly, in CBA Formal Op. 98, Dual Practice (Dec. 14, 1996), the Colorado Bar Association Ethics Committee noted the importance of recognizing the potential application of Rule 5.3 when a lawyer is engaged in multiple separate professions or businesses, and has nonlegal employees.

5.4   Rule 5.4 Professional Independence of a Lawyer [Restrictions on Form of Practice]

5.4:100   Comparative Analysis of Colorado Rule

Primary Colorado References: CO Rule 5.4
Background References: ABA Model Rule 5.4, Other Jurisdictions
Commentary:

5.4:101      Model Rule Comparison

Colo.RPC 5.4 differs from MR 5.4. Colo.RPC 5.4(a)(2) permits a lawyer who undertakes to complete unfinished legal work of a deceased lawyer to pay to the deceased lawyer’s estate a portion of the fees earned that fairly represents the value of the services rendered by the deceased lawyer. Colorado Rule 1.17 then governs all sales of a law practice. (See also MR 1.17.) MR 5.4(a)(2) applies to purchases of the practices of deceased, disabled or disappeared lawyers, and permits the purchasing lawyer pursuant to MR 1.17 to pay the agreed upon purchase price. The Colorado Supreme Court adopted MR 5.4(a)(2) in concept, but it changed the wording of Colo.RPC 5.4(a)(2). The Colorado Comments note that subsections (a), (b) and (c) are virtually identical to DR 3-102(A), DR 3-103(A), and DR 5-107(B) respectively.

Colo.RPC 5.4(d) is significantly different from MR 5.4(d). While MR 5.4(d) prohibits lawyers from practicing with or in the form of professional corporations or associations only if the circumstances outlined in Rule 5.4(d)(1)-(3) exist, Colo. RPC 5.4(d) prohibits lawyers from practicing with or in the form of a professional corporation or association or a limited liability company, except in accordance with CRCP 265 (which includes limited liability partnerships).

The Comment to Colo.RPC 5.4 includes the Comment to MR 5.4 verbatim. In addition, the Colorado Comment includes several additional paragraphs that discuss: (a) guidance to better protect the lawyer’s ability to exercise independent professional judgment in a professional corporation setting, and (b) ways for lawyers who are employees of legal assistance organizations to protect and maintain their professional independence.

5.4:102      Model Code Comparison

The Colorado Committee Comment to Colo.RPC 5.4 states that the Colorado Rule is virtually identical to the corresponding Colorado Code sections (DR 3-102(A), DR 3-103(A), DR 5-107(B), and DR 5-107(C)).

5.4:200   Sharing Fees with a Nonlawyer

Primary Colorado References: CO Rule 5.4(a)
Background References: ABA Model Rule 5.4(a), Other Jurisdictions
Commentary: ABA/BNA § 41:801, ALI-LGL § 60, Wolfram §§ 16.4, 16.5

Colo.RPC 5.4 prohibits a lawyer or law firm from sharing legal fees with a nonlawyer so as to avoid the possibility of nonlawyer interference with the exercise of the lawyer’s independent professional judgment. CBA Formal Op. 87, Collaboration With Non-Lawyers in Preparation and Marketing of Estate Planning Documents (July 14, 1990, revised Dec. 14, 1991, addendum 1995). Additionally, such a prohibition prevents the total fee paid by the client from being unreasonably high. Id..

Sharing compensation with a nonlawyer violated DR 3-102, the predecessor to Rule 5.4. Id. A lawyer may employ a nonlawyer to provide services, but payment for those services may not be based on a percentage of the lawyer’s fee. See People v. Easley, 956 P.2d 1257 (Colo. 1998) (an attorney’s contingent fee arrangement with private investigators based on the lawyer’s recovery of attorney’s fees violated Colo.RPC 5.4(a) as it impermissibly “shared legal fees with a nonlawyer”). See also People v. Shipp, 793 P.2d 574 (Colo. 1990) (a lawyer’s agreement with a prison inmate to pay her a referral fee for retainers he received from her referrals was an impermissible sharing of fees with a nonlawyer); People v. Bengert, 885 P.2d 241 (1994).

In a Formal Opinion based on the Canon of Professional Ethics, the CBA Ethics Committee stated that a lawyer should not accept, nor should another attorney pay, a referral fee unless the fee is based upon a division of service or responsibility “after full disclosure to the client and his consent to the payment of such fee obtained.” CBA Formal Op. 38, Referral Fees (June 4, 1966, addendum 1995). There are no Colorado cases that specifically address this issue.

In CBA Formal Op. 105, Opinion on Temporary Lawyers (May 22, 1999), the Colorado Bar Association Ethics Committee noted that where the services of a placement agency are employed to obtain a temporary lawyer, both the temporary lawyer and engaging lawyer or law firm must insure that the financial arrangements do not involve the sharing of legal fees with nonlawyers in violation of Colo.RPC 5.4(a). Similarly, CBA Formal Op. 98, Dual Practice (Dec. 14, 1996), notes that lawyers involved in practicing law and a separate business are prohibited from sharing legal fees with a nonlawyer.

CBA Formal Op. 87, Collaboration with Non-Lawyers in Preparation and Marketing of Estate Planning Documents (July 14, 1990, revised Dec. 14, 1991, addendum 1995), discussed fee splitting or partnership with a nonlawyer. Specifically, the Committee noted that a lawyer may not pay a commission to the nonlawyer salesperson of the estate documents, or have a prearranged split of the fee for services between the lawyer and the nonlawyer.

On the other hand, the Colorado Bar Association Ethics Committee opined that it is ethical for an attorney employed by a lender on a salaried basis to seek recovery of an attorney fee on behalf of the lender pursuant to an attorneys’ fee clause, when the fee claimed is only a pro rata portion of those amounts paid to the lawyer in the form of salary or benefits. CBA Formal Op. 72, Recovery of Attorney Fee by Lender Using In-House Counsel (April 19, 1986, revised Jan. 19, 1991, addendum 1995). While the attorneys’ fees recovered go to the lender, it is only reimbursement for the attorneys’ fees paid to the in-house lawyer. See also CBA Formal Op. 54, Fees Charged in Foreclosures or Redemption (undated, addendum 1995). See also CBA Formal Op. 63, Lawyer’s Relationship with a Traffic Clinic (Feb. 19, 1983, addendum 1995).

5.4:300   Forming a Partnership with Nonlawyers

Primary Colorado References: CO Rule 5.4(b)
Background References: ABA Model Rule 5.4(b), Other Jurisdictions
Commentary: ABA/BNA § 91:401, ALI-LGL § 60, Wolfram §§ 16.4, 16.5

People v. Bengert, 885 P.2d 241 (Colo. 1994), involved an attorney who formed a partnership with a nonlawyer where some of the activities of the partnership involved the practice of law, violating DR 3-103(A), the precursor to Colo.RPC 5.4(b). The attorney was suspended from the practice of law for one year and one day for this violation. See generally CBA Formal Op. 63, Lawyer’s Relationship with a Traffic Clinic (Feb. 19, 1983, addendum 1995).

See also CBA Formal Op. 98 (Dual Practice) and 99 (credit card use, partnership w/non partner). See also 5.4:200.

5.4:400   Third Party Interference with a Lawyer's Professional Judgment

Primary Colorado References: CO Rule 5.4(c)
Background References: ABA Model Rule 5.4(c), Other Jurisdictions
Commentary: ABA/BNA § 51:901, ALI-LGL § 60, Wolfram § 8.8

A triangular relationship between a lawyer, nonlawyer and client in the preparation and sale of a living trust package may have an adverse effect on the lawyer’s exercise of independent professional judgment as the lawyer would be compensated upon the sale of the trust package, and this “may deter the lawyer from questioning whether a living trust is the most appropriate estate planning vehicle for the client.” CBA Formal Op. 87, Collaboration With Non-Lawyers in Preparation and Marketing of Estate Planning Documents (July 14, 1990, revised Dec. 14, 1991, addendum 1995).

See also CBA Formal Op. 81, Lawyer’s Participation in Prepaid Legal Service Plan (March 18, 1989).

In CBA Formal Op. 91, Ethical Duties of Attorney Selected by Insurer to Represent its Insured (Jan. 16, 1993), the CBA Ethics Committee noted the applicability of Rule 5.4(c) to an attorney hired and paid by the insurer representing the insured.

There are no reported Colorado cases that address this issue.

5.4:500   Nonlawyer Ownership in or Control of Profit-Making Legal Service Organizations

Primary Colorado References: CO Rule 5.4(d)
Background References: ABA Model Rule 5.4(d), Other Jurisdictions
Commentary: ABA/BNA § 91:401, ALI-LGL § 60, Wolfram § 16.4, 16.5

5.4:510      Group Legal Services

There are no Colorado cases on this topic.

See generally CBA Formal Op. 81, Lawyer’s Participation in Prepaid Legal Service Plan (March 18, 1989); CBA Formal Op. 59, Legal Services Programs (Jan. 23, 1982, addendum 1995) (ethical responsibilities of legal services program management and staff attorneys in facing totally eliminated or substantially reduced funding).

5.4:520      Nonprofit Organizations Delivering Legal Services

There are no Colorado cases on this topic. See generally CBA Formal Op. 59, Legal Services Program (Jan. 23, 1982, addendum 1995).

5.5   Rule 5.5 Unauthorized Practice of Law

5.5:100   Comparative Analysis of Colorado Rule

Primary Colorado References: CO Rule 5.5
Background References: ABA Model Rule 5.5, Other Jurisdictions
Commentary:

Under CRS §12-5-101 and 112, a license is required in order to practice law. The Supreme Court has jurisdiction to regulate the unauthorized practice of law. Unauthorized Practice of Law Committee v. Prog, 761 P.2d 1111, 1115 (Colo. 1988). In carrying out that responsibility, the Supreme Court promulgated Chapter 19 of the Colorado Rules of Civil Procedure, Unauthorized Practice of Law Rules, CRCP 228-240.1. Practicing law without a license or without admission pro hac vice constitutes contempt of the Supreme Court. CRS §12-5-112.

In CBA Formal Op. 87, Collaboration With Non-Lawyers in Preparation of Marketing of Estate Planning Documents (July 14, 1990, revised Dec. 4, 1991, addendum 1995), the Ethics Committee stated that determining what acts constitute the practice of law is a function of the Colorado Supreme Court and falls outside the responsibilities of the Ethics Committee. “The Ethics Committee’s responsibilities do, however, include interpreting DR 3-101(A) [predecessor to Colo.RPC 5.5], which prohibits aiding a non-lawyer in the unauthorized practice of law.

5.5:101      Model Rule Comparison

Colo.RPC 5.5 is identical to MR 5.5 with one exception. MR 5.5(b) states that a lawyer shall not “assist a person who is not a member of the bar in the performance of activities that constitutes the unauthorized practice of law.” The Colorado Supreme Court modified the provision to provide that a lawyer shall not “assist a person who is not a member of the Colorado bar . . .”

The Comment to Colo.RPC 5.5 is identical to the Comment to MR 5.5.

5.5:102      Model Code Comparison

The Colorado Committee Comment explains the differences between Colo.RPC 5.5 and its predecessor, Colo.Code DR 3-101.

5.5:200   Engaging in Unauthorized Practice

Primary Colorado References: CO Rule 5.5(a)
Background References: ABA Model Rule 5.5(a), Other Jurisdictions
Commentary: ABA/BNA § 21:8001, ALI-LGL §§ 3, 4, Wolfram § 15.1

Unauthorized practice of law in Colorado is the practice of law without being licensed (and fulfilling the requisite requirements for licensing) or without being admitted pro hac vice. See CRS §12-5-101, 112. Thus, unauthorized practice of law is a bright line test. What constitutes the practice of law is the subject of numerous judicial decisions, but is not precisely defined - instead to be judged by the court in each circumstance. See Denver Bar Ass’n v. Public Utilities Comm., 391 P.2d 467 (Colo. 1964). CRS §12-5-112, Practicing Law Without License Deemed Contempt, describes the proscribed activities as advertising, representing or holding oneself out as an attorney or who appears in any court of record to conduct a proceeding for another person.

Colo.RPC 5.5(b) in essence makes an ethical violation of that which is judicial contempt under Colorado statutes. See CRS §12-5-112.

Generally, an attorney who continued to practice law while suspended from the Colorado bar violated DR 3-101(B), the predecessor of Colo.RPC 5.5. See People v. James, 731 P.2d 698 (Colo. 1987). Because DR 3-101(B) is nearly identical to Rule 5.5(a), any continuation of the practice of law by an attorney under suspension very probably violates the rules governing the practice of law in Colorado. Colo.RPC 5.5 Committee Comment. See People v. Cain, 957 P.2d 346 (Colo. 1998) (practice of law while under a disciplinary order of suspension was a serious offense and violative of Rule 5.5(a)); People v. Carpenter, 922 P.2d 939 (Colo. 1996) (accepting new employment and client retainers while under administrative suspension violates Rule 5.5(a)).

5.5:210      Practice of Law by Nonlawyers

Rule 5.5(b) specifically addresses the prohibition on the practice of law by nonlawyers. The Committee Comment to Rule 5.5 specifically notes that the phrase “nonlawyer,” as used in the old DR 101 has been replaced with “person who is not a member of the Colorado bar.” The Committee claims “the latter phrase is better, especially since it should eliminate some of the confusion that now arises when lawyers who are licensed elsewhere relocate to Colorado and begin work . . . before gaining admission to the Colorado bar.” Colo.RPC 5.5 Committee Comment. No Colorado cases address this change in the rule.

See also CBA Formal Op. 63, Lawyer’s Relationship with a Traffic Clinic (Feb. 19, 1983, addendum 1995); “Negotiation and the Unauthorized Practice of Law,” 23 Colo. Law 361 (1994).

5.5:220      Admission and Residency Requirements for Out-of-State Lawyers

There are no Colorado cases or Formal Opinions on this topic. See CRCP 201.1-227 (Ch. 18 - Rules Governing Admission to the Bar). See also Section 5.5:230.

5.5:230      Pro Hac Vice Admission [see also 8.1:240]

State Courts.

CRS §12-5-113 provides for special admission of counselors from other states: Whenever any counselor-at-law residing in any of the adjacent states or territories has business in any of the courts of this state, he may be admitted, on motion, for the purpose of transacting such business and none other.

There are no Colorado cases or Formal Opinions on this topic. See CRCP 201.1-227 (Ch. 18 - Rules Governing Admission to the Bar). CRCP 241.1 (Ch. 20, Colorado Rules of Procedure Regarding Discipline . . . .) provides that every lawyer specially admitted to practice law in Colorado pursuant to CRCP 221 or 221.1 is subject to the disciplinary and disability jurisdiction of the Supreme Court for conduct related to that proceeding. CRCP 221 provides for admission of attorneys admitted to practice law in other jurisdictions to participate in a proceeding before a Colorado court. Similarly, CRCP 221.1 provides for admission of out-of-state lawyers to be admitted to practice before a state agency for a particular cause.

Federal Courts.

There is no requirement that out-of-state lawyers appearing in federal courts in Colorado be affiliated with local (Colorado) counsel. The United States District Court for the District of Colorado and the United States Court of Appeals for the Tenth Circuit define the requirements for admission to practice before them, without distinction as to whether the attorney applicant is licensed by the State of Colorado or by some other state. See D.C. Colo. L.R. 83.5A; Fed. R. App. P. 46, Tenth Circuit Rule 46, and Section 0.2:270, supra.

5.5:240      Performing Legal Services in Another Jurisdiction

There are no Colorado cases or Formal Opinions on this topic. CRCP 241.1 (Ch. 20, Colorado Rules of Procedure Regarding Lawyer Discipline . . .) provides that every lawyer licensed to practice law in the State of Colorado is subject to the disciplinary jurisdiction of the Supreme Court in all matters relating to the practice of law. The practice of law subject to the jurisdiction of the Colorado Supreme Court is not limited by its terms to Colorado.

Given the recent California Supreme Court decision in Birbrower, Montalbano, Condon & Frank, P.C. v. Superior Court, 17 Cal. 4th 119, 949 P.2d 1 (1998) (holding New York law firm violated California misdemeanor unauthorized practice of law in preparing to represent a California affiliate of a longstanding New York client of the firm in an arbitration in California), one wonders whether the Colorado Supreme Court would literally apply subsection a so as to accept an out-of-state determination of unauthorized practice of law seemingly different than Colorado’s.

5.5:300   Assisting in the Unauthorized Practice of Law

Primary Colorado References: CO Rule 5.5(b)
Background References: ABA Model Rule 5.5(b), Other Jurisdictions
Commentary: ABA/BNA § 21:8201, ALI-LGL § 4, Wolfram § 15.1

Rule 5.5(b) prohibits assisting a person who is not a member of the Colorado bar in the performance of the unauthorized practice of law. The purpose of this rule is to protect “the public in its need for and reliance on the integrity and competence of those who undertake to render legal services.” CBA Formal Op. 87, Collaboration With Non-Lawyers in Preparation and Marketing of Estate Planning Documents (July 14, 1990, addendum 1995). The Colorado Supreme Court has held that “aiding a nonlawyer in the unauthorized practice of law is a violation of a duty owed to the legal profession.” People v. Macy, 789 P.2d 188, 189 (Colo. 1990).

What constitutes the unauthorized practice of law is not precisely defined, but is determined by the court on a case-by-case basis. See Denver Bar Ass’n v. Public Util. Comm’n, 154 Colo. 273, 391 P.2d 467 (1964). Generally, advising, counseling or assisting others with their legal rights will constitute the practice of law. Id. See People v. Cain, 957 P.2d 346 (Colo. 1998) (determining preparation of deeds of trust and a promissory note constituted the practice of law).

A lawyer may not assist a nonlawyer corporation that provides legal services to third parties. CBA Formal Op. 87, Collaboration With Non-Lawyers in Preparation and Marketing of Estate Planning Documents (July 14, 1990, addendum 1995). For example, an attorney who counsels a non-attorney corporation or nonlawyers on the sale of living trusts is considered to have engaged in the unauthorized practice of law. See People v. Cassidy, 884 P.2d 309 (Colo. 1994). See also People v. Volk, 805 P.2d 1116 (Colo. 1991) (an attorney’s review of living trust documents for a nonlawyer assisted a nonlawyer in the unauthorized practice of law); People v. Schmitt, 126 Colo. 546, 251 P.2d 915 (1952) (the creation and sale of trust documents by nonlawyers constitutes the unauthorized practice of law).

In People v. Felker, 770 P.2d 402 (Colo. 1989), a lawyer allowed a lawyer under suspension in another state and permanently enjoined from the practice of law in Colorado to provide legal advice to clients on multiple occasions. The court held that she had aided a nonlawyer in the unauthorized practice of law. In People v. Stewart, 892 P.2d 875 (Colo. 1995), the court held that the delegation of legal duties to an unsupervised nonlawyer assistant constituted aiding a person not a member of the Colorado bar in the unauthorized practice of law.

See generally, CBA Formal Op. 63, Lawyer’s Relationship With a Traffic Clinic (Feb. 19, 1983, addendum 1995); CBA Formal Op. 98, Dual Practice (Dec. 14, 1996) (risk of assisting unauthorized practice of law when involved in second occupation with nonlawyers); CBA Formal Op. 61, Legal Assistants (Oct. 23, 1982, addendum 1995).

5.6   Rule 5.6 Restrictions on Right to Practice

5.6:100   Comparative Analysis of Colorado Rule

Primary Colorado References: CO Rule 5.6
Background References: ABA Model Rule 5.6, Other Jurisdictions
Commentary:

5.6:101      Model Rule Comparison

Colo.RPC 5.6 is identical to the Model Rule with two exceptions. Colo.RPC 5.6(a) includes a reference to Colo.RPC 1.17 (concerning sale of a law practice). Additionally, Colo.RPC 5.6(b) deletes the reference to “between private parties” and replaces it with “or suit”.

The Comment to Colo.RPC 5.6 has several changes to the MR 5.6 comments. Colorado Comment [1] refers to “lawyer’s rights” rather than “the right of partners or associates” to practice after termination of a relationship. The Colorado Comment deletes entirely and replaces Comment [3] to the Model Rule with slightly different language that conveys the same point: Rule 5.6 does not apply to agreements concerning the sale of a law practice pursuant to Colo.RPC 1.17.

5.6:102      Model Code Comparison

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

5.6:200   Restrictions on Lawyers Leaving a Firm

Primary Colorado References: CO Rule 5.6(a)
Background References: ABA Model Rule 5.6(a), Other Jurisdictions
Commentary: ABA/BNA § 51:1201 ALI-LGL § 10

To date, Colorado courts have not considered this section and no Colorado Bar Association formal or informal ethics opinion have been written concerning this section.

5.6:300   Settlements Restricting a Lawyer's Future Practice

Primary Colorado References: CO Rule 5.6(b)
Background References: ABA Model Rule 5.6(b), Other Jurisdictions
Commentary: ABA/BNA § 51:1201, ALI-LGL § 10, Wolfram § 16.2.3

To date, Colorado courts have not considered this section and no Colorado Bar Association formal or informal ethics opinion have been written concerning this section.

5.7   Rule 5.7 Responsibilities Regarding Law-Related Services

5.7:100   Comparative Analysis of Colorado Rule

Primary Colorado References:
Background References: ABA Model Rule 5.7, Other Jurisdictions
Commentary:

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

5.7:101      Model Rule Comparison

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

5.7:102      Model Code Comparison

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

5.7:200   Applicability of Ethics Rules to Ancillary Business Activities

Primary Colorado References:
Background References: ABA Model Rule 5.7, Other Jurisdictions
Commentary: ABA/BNA § 101:2101, ALI-LGL §, Wolfram §

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