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Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.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

VI. PUBLIC SERVICE

6.1   Rule 6.1 Pro Bono Public Service

6.1:100   Comparative Analysis of Colorado Rule

Primary Colorado References: CO Rule 6.1
Background References: ABA Model Rule 6.1, Other Jurisdictions
Commentary:

6.1:101      Model Rule Comparison

Colo.RPC 6.1 differs in several significant respects from the Model Rule. MR 6.1 provides that a “lawyer should aspire to render at least (50) hours of pro bono publico legal services per year.” MR 6.1(a) and (b) establish a hierarchy of preferred pro bono clients and services. Finally, MR 6.1 states that “a lawyer should voluntarily contribute financial support to organizations that provide legal services to persons of limited means.”

Although Colo.RPC 6.1 adopts the spirit of the Model Rule, the Colorado Rule does not require a lawyer to devote a specific number of hours to pro bono publico service even as an aspirational goal. Although both Rules recognize the importance of providing legal services to “persons of limited means,” Colo.RPC 6.1 does not define, with the same specificity as MR 6.1, the types of groups to which legal services should be provided. Instead, Colo.RPC 6.1 states that “[a] lawyer should render public interest legal service. A lawyer may discharge this responsibility by providing professional services at no fee or a reduced fee.” Like the Model Rule, Colo.RPC 6.1 encourages a lawyer to engage in activities that improve “the law, the legal system or the legal profession,” and to contribute financially to legal services organizations.

The Comments to the Colorado and Model Rules are entirely different. The Comment to MR 6.1 discusses at some length the 50-hour aspirational minimum set forth in the Model Rule and the specific types of pro bono clients and services outlined in that rule; because Colo.RPC 6.1 lacks these specific provisions, its Comment does not discuss them. The Colorado Comment instead emphasizes: (1) the special role of lawyers in our society and the corresponding importance of pro bono publico legal services; (2) the responsibility of the legal profession to insure that everyone has access to legal services, regardless of their financial status; and (3) the importance of legal services organizations, and the ethical obligations of individual attorneys as well as the legal profession to support those organizations.

The Committee Comment to Colo.RPC 6.1 states that it “considered making the Rule mandatory by substituting ‘shall’ in place of ‘should’ in the first sentence, but concluded as a matter of policy this question should be left to the Colorado Supreme Court.”

6.1:102      Model Code Comparison

6.1:200   Lawyer's Moral Obligation to Engage in Public Interest Legal Service

Primary Colorado References: CO Rule 6.1
Background References: ABA Model Rule 6.1, Other Jurisdictions
Commentary: ABA/BNA § 91:6001, ALI-LGL § , Wolfram § 16.9

As the Committee Comment makes clear, Colo.RPC 6.1 is “taken in substance primarily from Colorado Code EC 2-25.” Ethical Consideration 2-25 states as follows:

Historically, the need for legal services of those unable to pay reasonable fees has been met in part by lawyers who donated their services or accepted court appointments on behalf of such individuals. The basic responsibility for providing legal services for those unable to pay ultimately rests upon the individual lawyer, and personal involvement in the problems of the disadvantaged can be one of the most rewarding experiences in the life of a lawyer. Every lawyer, regardless of professional prominence or professional workload, should find time to participate in serving the disadvantaged. The rendition of free legal services to those unable to pay reasonable fees continues to be an obligation of each lawyer, but the efforts of individual lawyers are often not enough to meet the need. Thus it has been necessary for the profession to institute additional programs to provide legal services. Accordingly, legal aid offices, lawyer referral services, and other related programs have been developed, and others will be developed, by the profession. Every lawyer should support all proper efforts to meet this need for legal services.

EC 2-25 is “aspirational in character and represent[s] [an] objective toward which every member of the profession should strive . . . . [It is a principle] upon which the lawyer can rely for guidance in many specific situations.” Preliminary Statement, Colorado Code. Thus, every lawyer in Colorado has a responsibility to provide legal services to the disadvantaged and to support legal and civic programs which attempt to accommodate this need. See CBA Formal Op. 59, Legal Services Programs (January 23, 1982, addendum issued 1995). Although CBA Formal Op. 59 was decided under the Colorado Code, the 1995 Addendum states that “the Ethics Committee considers this Opinion to continue to provide guidance to attorneys in this area.”

In addition, Colo.RPC 6.1 was influenced, in part, by a number of other Ethical Considerations. See EC 1-1 (“every person in our society should have ready access to the independent professional services of a lawyer of integrity and competence”); EC 2-1 (“important functions of the legal profession are to . . . assist in making legal services fully available”); EC 2-2 (“lawyers should encourage and participate in educational and public relations programs concerning our legal system”); EC 2-16 (“persons unable to pay all or a portion of a reasonable fee should be able to obtain necessary legal services, and lawyers should support and participate in ethical activities designed to achieve that objective”); EC 2-24 (“A layman whose financial ability is not sufficient to permit payment of any fee cannot obtain legal services, other than in cases where a contingent fee is appropriate, unless the services are provided for him. Even a person of moderate means may be unable to pay a reasonable fee which is large because of the complexity, novelty, or difficulty of the problem or similar factors”); EC 6-2 (“a lawyer should strive at all levels to aid the legal profession in advancing the highest possible standards of integrity and competence and to meet those standards himself”); EC 8-1 “[lawyers] should participate in proposing and supporting legislation and programs to improve the [legal] system”); EC 8-2 (“[lawyers] should encourage the simplification of laws and the repeal or amendment of laws that are outmoded”); EC 8-3 (“persons unable to pay for legal services should be provided needed services”); EC 8-7 (“[lawyers] should be persons . . . of dedication to the improvement of the system”); EC 8-9 (“lawyers should encourage, and should aid in making, needed changes and improvements”). See also DR 2-103(D)(1), Recommendation of Professional Employment.

Colo.RPC 6.1 represents only a moral and ethical obligation. See Committee Comment to Colo.RPC 6.1 (“The Committee considered making the Rule mandatory by substituting ‘shall’ in place of ‘should’ in the first sentence, but concluded that as a matter of policy this question should be left to the Colorado Supreme Court”). See also CRCP 201.14, 12 CRS (1997) (upon admission to the bar, every lawyer in Colorado must recite the Lawyer’s Oath which states, in relevant part, “I will never reject, from any consideration personal to myself, the cause of the defenseless or oppressed”); “Examining Pro Bono in Colorado,” 23 Colo, Law. 1049, (May 1994) (discussing the existing debate surrounding the “hot topic among bar associations nationwide” of mandatory pro bono legal services).

In CBA Formal Op. 59, Legal Services Programs (January 23, 1982, addendum issued 1995), the CBA Ethics Committee addressed the following issue: what are the “[e]thical responsibilities of legal services program management and staff attorneys in facing totally eliminated or substantially reduced funding[?] [And what is the] [r]esponsibility of the Bar in these circumstances[?]”

Although this CBA Formal Op. 59 deals primarily with other ethical rules, Colo.RPC 6.1 is clearly implicated. As recognized by the Committee, the “principle stated in [Colo.RPC 6.1], applied to this problem of reduced funding in legal services programs, easily leads to a straightforward conclusion: ‘The legal profession has a clear responsibility to respond by helping to obtain funds for existing legal services programs and by providing free legal services to indigent clients who would be served by legal services offices were funding available.” CBA Formal Op. 59 (citing ABA Formal Op. 347). The Committee also encourages “governing bodies of the various legal services programs and the availability of legal services committees of the various bar associations to take all necessary actions to help obtain funds for existing legal services programs in Colorado and to arrange for the necessary mechanisms to furnish voluntary legal services to the former clients of legal services programs.” CBA Formal Op. 59.

As one might expect, Colo.RPC 6.1 does not receive much attention in the case law of Colorado. That is not to say, however, that it has been totally ignored. In In Re Marriage of Swink, 807 P.2d 1245 (Colo. App. 1991), the Colorado Court of Appeals held that a trial court may award attorney fees pursuant to CRS § 14-10-119 to “an attorney who, on a pro bono basis, has rendered services to a party to a dissolution of marriage proceeding.” Although this case was decided under the Code, its holding and rationale clearly applies to Colo.RPC 6.1. Underlying the Court’s holding was its conclusion that “every lawyer also has a duty to support proper efforts and appropriate programs to meet the needs of persons unable to pay reasonable fees.” Id. at 1247-48. See also People v. District Court, 761 P.2d 206, 211-12 (Colo. 1988) (Erickson, J., specially concurring) (discussing ethical obligations of a lawyer appointed to represent an indigent criminal defendant: “I have always believed that every lawyer endeavors to provide the best representation that he can offer when he is either employed or accepts an appointment from the court, regardless of the fee involved”).

While Colo.RPC 6.1 is not cited with much frequency in the cases, it certainly has received its fair share of attention in the Colorado Lawyer. E.g. “Examining Pro Bono in Colorado,” 23 Colo. Law. 1049, (May 1994) (This article discusses, in detail, why there is a need for pro bono services and the benefits individual attorneys receive as a result of providing such services. It also provides a listing of a variety of pro bono opportunities available to attorneys in Colorado); “Doing Our Part: Joining the Pro Bono Community,” 26 Colo. Law. 55, (November 1997) (This article discusses, in detail, the Metro Volunteer Lawyers Association, formerly known as the Thursday Night Bar,and the benefits individual attorneys receive as a result of providing pro bono services. It also attempts to answer commonly-asked questions and to provide practical advice to attorneys who are interested in pro bono legal services. Finally, it provides information regarding various pro bono opportunities available to attorneys in Colorado).

Lastly, any attorney interested in Colo.RPC 6.1 or a related issue should obtain the “First Report of the Legal Services/Pro Bono Committee of the Judicial Advisory Council,” (July 1998). The report is far too lengthy to summarize it here. However, based on specific findings detailed in the Report, the Council issued the following recommendations: (1) “A Chief Justice Directive should be issued to provide for the establishment or continuation of a committee for pro bono legal services in each judicial district.”; (2) “The Chief Justice Directive or modification to the Code of Judicial Conduct should provide specific guidance to judges . . . .”; and (3) “The Supreme Court should establish a statewide standing committee to monitor activities and encourage the development of pro bono services throughout the state.”

6.2   Rule 6.2 Accepting Appointments

6.2:100   Comparative Analysis of Colorado Rule

Primary Colorado References: CO Rule 6.2
Background References: ABA Model Rule 6.2, Other Jurisdictions
Commentary:

6.2:101      Model Rule Comparison

Colo.RPC 6.2 is virtually identical to MR 6.2, with one exception. MR 6.2(b) permits a lawyer to decline an appointment if the representation “is likely to result in an unreasonable financial burden on the lawyer.” Colo.RPC 6.2(b), on the other hand, does not limit this decision to financial considerations and, instead, permits a lawyer to decline the representation if it “is likely to result in an unreasonable and oppressive burden on the lawyer.”

The Comment to Colo.RPC 6.2 also differs somewhat from the Model Rule Comment. The Colorado Comment indicates that a “lawyer’s freedom to select clients is, however, sometimes qualified”; the Comment to MR 6.2, on the other hand, does not include the word “sometimes”. The Comment to Colo.RPC 6.2 expands upon a lawyer’s obligations to represent unpopular or poor clients, and also includes “repugnant clients” and “unpopular or repugnant” causes. Both comments recognize that a lawyer may decline an appointment when “good cause” exists and, while both comments define “good cause”, the Colorado Comment includes language that narrows the Model Rule Comment’s definition: “On the other hand, good cause does not include such factors as the repugnance of the subject matter of the proceeding, the identity or position of a person involved in the case, or the belief of the lawyer that the defendant in a criminal proceeding is guilty.” Finally, Comment [3] to MR 6.2, which provides that an appointed lawyer has the same ethical obligations to the client as retained counsel, is omitted from the Colorado Comment.

6.2:102      Model Code Comparison

The Colorado Committee Comment indicates that the narrower definition of “good cause” is derived from EC 2-29.

6.2:200   Duty to Accept Court Appointments Except for Good Cause

Primary Colorado References: CO Rule 6.2
Background References: ABA Model Rule 6.2, Other Jurisdictions
Commentary: ABA/BNA § 91:6201, ALI-LGL § 26, Wolfram § 16.9

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

6.3   Rule 6.3 Membership in Legal Services Organization

6.3:100   Comparative Analysis of Colorado Rule

Primary Colorado References: CO Rule 6.3
Background References: ABA Model Rule 6.3, Other Jurisdictions
Commentary:

6.3:101      Model Rule Comparison

Colo.RPC 6.3 is virtually identical to MR 6.3, with one semantic difference. MR 6.3 refers only to “the organization,” while Colo.RPC 6.3 refers, instead, to the “lawyer” or “lawyers provided by the organization.”

The Colorado and Model Rule Comments are identical, except for the semantic difference discussed above.

The Colorado Committee Comment explains that the “language—‘a lawyer provided by’—has been added to the ABA Model [Rule] simply to make clear what otherwise has to be presumed, i.e., that it is the staff attorneys of the organization who provide the legal services to the clients who have come to the organization for assistance.”

6.3:102      Model Code Comparison

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

6.3:200   Conflicts of Interest of Lawyers Participating in a Legal Services Organization

Primary Colorado References: CO Rule 6.3
Background References: ABA Model Rule 6.3, Other Jurisdictions
Commentary: ABA/BNA § 91:6401, ALI-LGL § 216, Wolfram § 16.7.4

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

6.4   Rule 6.4 Law Reform Activities Affecting Client Interests

6.4:100   Comparative Analysis of Colorado Rule

Primary Colorado References: CO Rule 6.4
Background References: ABA Model Rule 6.4, Other Jurisdictions
Commentary:

6.4:101      Model Rule Comparison

Colo.RPC 6.4 tracks MR 6.4, but expands upon a lawyer’s responsibility to disclose the fact that the lawyer’s client may be materially benefited by a decision in which the lawyer participates. MR 6.4 requires a lawyer to make such a disclosure when “the lawyer knows” that there may be a resulting benefit to a client’s interests. Colo.RPC 6.4 broadens that duty to require disclosure “[w]hen the lawyer knows or reasonably should know” that a client’s interests may be materially benefited. Additionally, Colo.RPC 6.4 provides that the lawyer should make the requisite disclosure “to the organization.”

The Colorado and Model Rule Comments are virtually identical. The Colorado Comment, however, reiterates the expanded duty of a lawyer to make the required disclosure not only when the lawyer “knows” that a client will be materially benefited, but also when the lawyer “reasonably should know that a private client might be materially benefited.”

6.4:102      Model Code Comparison

The Colorado Committee Comment notes that Colo.RPC 6.4 draws on the principles contained in EC 2-33, DR 5-101(A), and DR 8-101.

6.4:200   Conflicts of Interest of Lawyers Participating in Law Reform Organizations

Primary Colorado References: CO Rule 6.4
Background References: ABA Model Rule 6.4, Other Jurisdictions
Commentary: ABA/BNA § 91:6401, ALI-LGL § , Wolfram § 13.8

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

6.5   Rule 6.5 Nonprofit and Court-Annexed Limited Legal Service Programs

6.5:100   Comparative Analysis of Colorado Rule

Primary Colorado References:
Background References: ABA Model Rule 6.5, Other Jurisdictions
Commentary:

MR 6.5 was added in February 2002. The Reporter's explanation of the change reads as follows:

Rule 6.5 is a new Rule in response to the Commission's concern that a strict application of the conflict-of-interest rules may be deterring lawyers from serving as volunteers in programs in which clients are provided short-term limited legal services under the auspices of a nonprofit organization or a court-annexed program. The paradigm is the legal-advice hotline or pro se clinic, the purpose of which is to provide short-term limited legal assistance to persons of limited means who otherwise would go unrepresented.

6.5:101      Model Rule Comparison

Colorado has not adopted the new model rule.

6.5:200   Scope of Rule

Primary Colorado References:
Background References: ABA Model Rule 6.5, Other Jurisdictions
Commentary:

Colorado has not adopted the new model rule.

6.5:300   Special Conflict of Interest Rule

Primary Colorado References:
Background References: ABA Model Rule 6.5, Other Jurisdictions
Commentary:

Colorado has not adopted the new model rule.