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Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.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

VIII. MAINTAINING THE INTEGRITY OF THE PROFESSION

8.1   Rule 8.1 Bar Admission and Disciplinary Matters

8.1:100   Comparative Analysis of Colorado Rule

Primary Colorado References: CO Rule 8.1
Background References: ABA Model Rule 8.1, Other Jurisdictions
Commentary:

8.1:101      Model Rule Comparison

Colo.RCP 8.1 is identical to the Model Rule with two exceptions. Colo.RPC 8.1 adds the words “or reinstatement” to the first sentence to make it clear that Colo.RPC 8.1 applies to applications for both initial admission to the bar and for reinstatement. Colo.RPC 8.1 also adds language permitting an applicant to make “a good faith challenge” to a demand for information requested by a bar admission or disciplinary authority.

The Comment to Colo.RPC 8.1 is identical to the Comment to the Model Rule.

8.1:102      Model Code Comparison

Colo.RCP 8.1(a) generally reflects the prohibitions contained in DR 1-101. However, Colo.RPC 8.1 is broader than the Code in that it applies to applications for admission to the bar as well as to reinstatement to the bar and to any disciplinary proceeding. Moreover, DR 1-101(A) only prohibited false statements in connection with the lawyer’s own application for admission, and DR 1-101(B) provided that a lawyer should not further the application of another who was unqualified, but did not specifically refer to false statements. The current Rule broadly applies to false statements in connection with the lawyer’s own admission, reinstatement or disciplinary proceeding, or that of another.

The prohibition in Colo.RCP 8.1(b) is reflected in DR 1-103(B). However, the Rule applies specifically to admission and disciplinary proceedings, whereas the Code provision required a lawyer to disclose any unprivileged knowledge upon requests from any tribunal. Finally, the former Code provision did not contain the qualification that the lawyer is not required to disclose information protected by Rule 1.6.

8.1:200   Bar Admission

Primary Colorado References: CO Rule 8.1
Background References: ABA Model Rule 8.1, Other Jurisdictions
Commentary: ABA/BNA §§ 21:101, 10l:1, ALI-LGL § 2, Wolfram §§ 15.2, 15.3

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

8.1:210      Bar Admission Agency

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

8.1:220      Bar Admission Requirements

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

8.1:230      Admission on Motion

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

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

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

8.1:300   False Statements of Material Fact in Connection with Admission or Discipline

Primary Colorado References: CO Rule 8.1(a)
Background References: ABA Model Rule 8.1(a), Other Jurisdictions
Commentary: ABA/BNA §§ 21:301, 101:201, Wolfram § 15.3.1

In People v. Culpepper, 645 P.2d 5 (Colo. 1982), the lawyer’s license to practice in Colorado was voided after it was discovered that the lawyer had provided a fraudulent undergraduate degree transcript with his law school application. The violation of the former Code provision arose when he used the same information on his Colorado bar application. Because the individual was not qualified to take the Bar exam in the first place, he was required to take the examination again if he ever requested reinstatement. Moreover, the violation did not remain confidential and was made known to the National Disciplinary Data Bank in order to inform other agencies that license attorneys.

In People v. Mattox, 639 P.2d 397 (Colo. 1982), a lawyer was suspended for one year for failing to disclose that she had previously been disbarred in Kentucky after pleading guilty to a misdemeanor. In People v. Gifford, 610 P.2d 485 (Colo. 1980), an attorney was suspended for three years for failing to disclose on his bar application that he had been previously questioned about a violation of law, which consisted of questioning by the IRS due to the applicant’s failure to file a federal income tax return. Although all of the three cases discussed were decided under the former Code, such conduct would undoubtedly constitute a violation of Colo.RCP 8.1.

8.1:400   Duty to Volunteer Information to Correct a Misapprehension

Primary Colorado References: CO Rule 8.1(b)
Background References: ABA Model Rule 8.1(b), Other Jurisdictions
Commentary:

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

8.1:410      Protecting Client Confidential Information

In People v. Mannix, 936 P.2d 1285 (Colo. 1977), an attorney was disbarred for, among other things, failing to cooperate with the investigation in his disciplinary proceedings, and failing to respond to demands for information.

8.1:500   Application of Rule 8.1 to Reinstatement Proceedings

Primary Colorado References: CO Rule 8.1(b)
Background References: ABA Model Rule 8.1(b), Other Jurisdictions
Commentary:

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

8.2   Rule 8.2 Judicial and Legal Officials

8.2:100   Comparative Analysis of Colorado Rule

Primary Colorado References: CO Rule 8.2
Background References: ABA Model Rule 8.2, Other Jurisdictions
Commentary:

8.2:101      Model Rule Comparison

Colo.RPC 8.2 and its Comment are identical to the Model Rule and its Comment.

The Colorado Committee Comment notes that applicable provisions of the Colorado Code of Judicial Conduct also apply to the selection and retention of judges.

8.2:102      Model Code Comparison

A narrower counterpart to Colo.RPC 8.2(a) was contained in DR 8-102(A) and EC 8-6. DR 8-102(A) applied only to statements about “qualifications” of a judge, whereas Colo.RPC 8.2(a) applies to “qualifications or integrity.” Moreover, Colo.RPC 8.2(a) extends to reckless disregard as to the truth or falsity of statements, whereas DR 8-102(a) applied only to knowingly false statements.

There was no counterpart to Colo.RPC 8.2(b) in the Model Code.

8.2:200   False Statements About Judges or Other Legal Officials

Primary Colorado References: CO Rule 8.2(a)
Background References: ABA Model Rule 8.2(a), Other Jurisdictions
Commentary: ABA/BNA § 101:601, ALI-LGL § 174, Wolfram § 11.3.2

On several occasions, the Colorado Supreme Court has disciplined lawyers where the allegations against the lawyer included making false statements about a judge.

In People v. Thomas, 925 P.2d 1081 (Colo. 1996), a lawyer filed a motion to recuse a judge after he denied a motion for summary judgment. The motion for recusal was not accompanied by the required affidavit and accused the judge of not reading the pleadings, of having a personal dislike for the lawyer in part because she was female, of having an “unsavory relationship” with the plaintiff, and of being biased because the lawyer and her client lived elsewhere and did not contribute to the local economy. In spite of these rather egregious statements, the lawyer was only subject to public censure because of other aggravating factors.

In People v. Bottinelli, 926 P.2d 553 (Colo. 1996), an attorney with a history of misconduct was disbarred from conduct arising from a competency hearing for an elderly woman. After an unfavorable ruling, the lawyer filed numerous motions alleging a conspiracy on the part of two judges, a magistrate and several other lawyers. He also alleged that a judge was engaged in a cover-up of misconduct by the magistrate. See also People v. Proffitt, 854 P.2d 787 (Colo. 1993) (lawyer disbarred for, among other things, filing a motion for contempt against a judge); People v. Bannister, 814 P.2d 801 (Colo. 1991) (lawyer disbarred for filing motion to recuse judge who found a disputed signature to be genuine, and later offering to withdraw a disciplinary complaint against the judge in exchange for a favorable ruling); People v. Harfmann, 638 P.2d 745 (Colo. 1981) (lawyer disbarred for violations including false accusations against a trial judge).

Generally, discipline for making false statements about a judge involves conduct that also violates numerous other rules. Simply making a false statement may also be a violation of Colo.RPC 3.3(a) or 8.4(c), among others.

8.2:300   Lawyer Candidates for Judicial Office

Primary Colorado References: CO Rule 8.2(b)
Background References: ABA Model Rule 8.2(b), Other Jurisdictions
Commentary: ABA/BNA § 101:601, ALI-LGL § 174, Wolfram § 17.2

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

8.3   Rule 8.3 Reporting Professional Misconduct

8.3:100   Comparative Analysis of Colorado Rule

Primary Colorado References: CO Rule 8.3
Background References: ABA Model Rule 8.3, Other Jurisdictions
Commentary:

The discussion of this Rule is current through October 31, 2000.

8.3:101      Model Rule Comparison

Colo.RPC 8.3 and its Comment are identical to the Model Rule and its Comment.

The Colorado Committee Comment notes that in recommending this rule, the Committee adopted the definition of knowledge (“no substantial doubt”) set forth in the Restatement of Restitution 10, Comment (d) (1937), which the Colorado Bar Association Ethics Committee adopted in CBA Formal Op. 64 (April 23, 1983, amended June 15, 1996).

8.3:102      Model Code Comparison

The counterparts to Colo.RPC 8.3 in the Model Code are DR 1-103 and EC 1-4. Although Colo.RPC 8.3 and DR 1-103 are worded differently, both provisions apply generally to reporting violations of any of the rules governing attorney conduct.

Colo.RPC 8.3 specifically applies to “violations of the Rules of Professional Conduct,” whereas DR 1-103 applied to reporting a violation of DR 1-102. DR 1-102 applied to violations of any “Disciplinary Rule.”

The primary change in the scope of the reporting requirement with the adoption of Colo.RPC 8.3 is that no report is required unless the misconduct “raises a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects.” This language significantly lessens the duty to report to situations where the misconduct is deemed to be more serious. As suggested in the Comment, this change not only eliminates reporting of more frivolous matters, but eliminates the situation where failure to report every violation would itself be a violation of the Rules. The same limitation has been added to Colo.RPC 8.3(b) regarding reporting misconduct of judges.

The reporting argument has also been lessened by Colo.RPC 8.3(c), which does not require disclosure of client confidences or privileged matters under Colo.RPC 1.6. DR 1-103 only protected privileged matters from disclosure, but did not extend to confidential matters.

8.3:200   Mandatory Duty to Report Serious Misconduct

Primary Colorado References: CO Rule 8.3(a)
Background References: ABA Model Rule 8.3(a), Other Jurisdictions
Commentary: ABA/BNA § 101:201, ALI-LGL § 5, Wolfram § 12.10

Rule 8.3(a) defines two requirements before a lawyer having knowledge of another lawyer’s violation of the Rules of Professional Conduct has a duty to report that conduct: first, the lawyer must have “knowledge” that another lawyer has committed a violation; second, that violation must go to the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects; third, the violation must raise a “substantial question” about the lawyer’s honesty, etc. The principal issues probably are (a) what constitutes questions as to “fitness as a lawyer in other respects,” (b) what constitutes a “substantial question,” (c) when must the violation be reported, and (d) in addition to the disciplinary system, who constitutes the “appropriate” professional authority.

The report of misconduct must be made to “the appropriate professional authority,” which the Rules do not define. The Presiding Disciplinary Judge designated pursuant to CRCP 251.14 should suffice. It would seem that reporting a misconduct in a judicial proceeding to the presiding judge would also suffice, and perhaps even a letter to the Colorado Supreme Court or to the Regulation Counsel (under the Disciplinary Rules). The Disciplinary Rules, CRCP 251.4, require a judge to “report unprofessional conduct” by an attorney to the Regulation Counsel pursuant to Canon 3(B)(3) of the Colorado Code of Judicial Conduct. Colorado has not yet directly considered this reporting duty as to conduct outside the practice of law.

CBA Formal Op. 64 (April 23, 1983, amended June 15, 1996) notes that Colo.RPC 8.3(a) incorporates the definition of knowledge from the Restatement of Restitution, §10, Comment (d) (1937) defining knowledge as “no substantial doubt.” Such knowledge can be inferred from conduct. Once the attorney has the requisite knowledge, the attorney is required to report the violation regardless of personal consequences.

If the attorney only has knowledge by virtue of being informed by a third person, there is no duty to report or investigate the allegations. The attorney must generally have personal knowledge to give rise to the reporting obligation. However, the attorney may recommend that the party providing the information file a request for investigation, or the attorney may also file such a request. However, if the conduct is reported by a client, the attorney must first consider whether any action is required or appropriate under Colo.RPC 8.3(c), which protects disclosure of confidential or privileged information.

The terminology section of the Rules defines “substantial” as “a material matter of clear and weighty importance.” There are no authorities in Colorado that provide guidance in the threshold for reporting a violation.

CBA Formal Op. 64 notes that there is no specified time within which a report must be made. The violation should be reported as soon as practical, keeping in mind all other duties to the client or the judicial system that may apply in a particular circumstance, particularly Colo.RPC 4.5, which provides that disciplinary charges should not be brought solely to gain advantage in a civil matter. It may be appropriate to wait to report a violation until a pending matter is completed, unless the conduct is of a nature that requires immediate attention.

All reports of misconduct by a Colorado attorney are reported to the Attorney Regulation Counsel. See CRCP 251.3. This is true even if the misconduct occurs in another state. See Colo.RPC 8.5, infra. However, in some situations the appropriate authority to which to report might be a judge.

CBA Abstract Op. 96/97-3 dealt with an attorney acting as a guardian ad litem (“GAL”) who filed a therapist’s report with the Court, and served it on all counsel of record. An attorney representing another party informed the GAL that the filing constituted an impermissible ex parte communication with the Court, and expressed an intent to file disciplinary charges if the GAL took any similar actions in the future. The GAL was required to report the lawyer’s threat if the GAL knew that the threat was made to gain an advantage in the litigation, because such conduct raises a substantial question as to the complaining lawyer’s honesty, trustworthiness or fitness as a lawyer. Such knowledge can be inferred from conduct.

CBA Abstract Op. 96/97-14 dealt with a lawyer who presided over a private organization’s arbitrations. At an arbitration hearing, another lawyer admitted falsifying his client’s signature in order to obtain medical records. The attorney was required to report the conduct, and that duty was not overridden by the organization’s policy. Any other lawyer who may have learned of the conduct by reviewing written minutes of the meeting may report the conduct, but they do not have a duty to do so because they do not have first-hand knowledge of the conduct.

8.3:300   Reporting the Serious Misconduct of a Judge

Primary Colorado References: CO Rule 8.3(b)
Background References: ABA Model Rule 8.3(b), Other Jurisdictions
Commentary: ABA/BNA § 101:201, ALI-LGL § 5, Wolfram § 12.10

Rule 8.3(b) requires a lawyer (1) having “knowledge” of a violation of the Judicial Rules of Conduct, (2) that raises a “substantial question” as to the judge’s “fitness” for office, shall inform the “appropriate authority.” It does not appear that there are any published cases or ethics opinions illuminating the duty of this rule. The appropriate authority presumably is the Commission on Judicial Discipline under CRCP Ch. 24, Rule 12. However, the chief judge of that court, and any higher court, might also constitute “appropriate authority.”

8.3:400   Exception Protecting Confidential Information

Primary Colorado References: CO Rule 8.3(c)
Background References: ABA Model Rule 8.3(c), Other Jurisdictions
Commentary: ABA/BNA § 101:201, ALI-LGL §§ 113-117A, Wolfram § 12.10

Rule 8.3(c) excepts from the duty to report violations of the Rules of Professional Conduct information protected by Rule 1.6 (Confidentiality) or information gained while serving as a member of an approved lawyer assistance program to the extent the information would be confidential if it were communicated subject to the attorney-client privilege. This latter exception is discussed with concurrence in CBA Abstract Op. 96.97-8, citing People v. Morely, 725 P.2d 510 (Colo. 1986). The Committee noted that Rule 1.6 has an exception for information related to the intent to commit a crime and to prevent the crime. CBA Abstract Op. 14 considered the situation in which Lawyer A is a hearing officer who presides over a private organization’s arbitrations. That organization’s internal policy provides Lawyer A will keep confidential the identity of the participants in the hearing. That internal policy also provides that the hearing officer prior to issuance will discuss his factual findings and conclusions, but not the identity of the participants with other lawyers.

In a hearing, Lawyer B disclosed that he had signed his client’s name on a medical records form, had his secretary falsely notarize the signature as if it were the client’s signature, and thereby obtained the client’s medical records. The Committee concluded Lawyer B’s conduct was within the reporting requirements of Rule 8.3(a). Since the information did not relate to representation of a client by Lawyer A, Rule 8.3 did not apply. The organization’s internal confidentiality policy does not override Lawyer A’s reporting duty under Rule 8.3(a). Lastly, the Court equated “knowledge” as being first-hand information, and therefore lawyers who learned of the violation from Lawyer A did not have a duty to report.

8.4   Rule 8.4 Misconduct

8.4:100   Comparative Analysis of Colorado Rule

Primary Colorado References: CO Rule 8.4
Background References: ABA Model Rule 8.4, Other Jurisdictions
Commentary:

8.4:101      Model Rule Comparison

Colo.RPC 8.4 is identical to the Model Rule except that the Colorado Rule adds subsections (g) and (h). Colo.RPC 8.4(g) provides that it is misconduct for a lawyer to “engage in conduct which violates accepted standards of legal ethics.” Colo.RPC 8.4(h) provides that it is misconduct to “engage in any other conduct that adversely reflects on the lawyer’s fitness to practice law.”

The Comment to Colo.RPC 8.4 is identical to the Comment to MR 8.4, except that Colorado has not adopted the amended version of Comment [2], which was added to the Model Rules in August 1998, and which prohibits a lawyer from manifesting bias or prejudice based upon race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic status when such actions are prejudicial to the administration of justice.

The Colorado Committee Comment to Colo.RPC 8.4 notes that Colo.RPC 8.4(g) reflects the proscription contained in CRCP 241.6 (now CRCP 251.5).

8.4:102      Model Code Comparison

The Colorado Committee Comment to Colo.RPC 8.4 notes that Colo.RPC 8.4(h) reflects the proscription contained in DR 1-102(A)(6).

8.4:200   Violation of a Rule of Professional Conduct

Primary Colorado References: CO Rule 8.4(a)
Background References: ABA Model Rule 8.4(a), Other Jurisdictions
Commentary: ABA/BNA § 101:101, ALI-LGL § 2, Wolfram § 3.3

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

8.4:300   Commission of a Crime

Primary Colorado References: CO Rule 8.4(b)
Background References: ABA Model Rule 8.4(b), Other Jurisdictions
Commentary: ABA/BNA § 101:301, ALI-LGL § 8, Wolfram § 3.3.2

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

8.4:400   Dishonesty, Fraud, Deceit and Misrepresentation

Primary Colorado References: CO Rule 8.4(c)
Background References: ABA Model Rule 8.4(c), Other Jurisdictions
Commentary: ABA/BNA § 101:401, ALI-LGL § 2, Wolfram § 3.3.3

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

8.4:500   Conduct Prejudicial to the Administration of Justice

Primary Colorado References: CO Rule 8.4(d)
Background References: ABA Model Rule 8.4(d), Other Jurisdictions
Commentary: ABA/BNA § 101:501, ALI-LGL § 2, Wolfram § 3.3.2

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

8.4:600   Implying Ability to Influence Public Officials

Primary Colorado References: CO Rule 8.4(e)
Background References: ABA Model Rule 8.4(e), Other Jurisdictions
Commentary: ABA/BNA § 101:701, ALI-LGL § 173, Wolfram §

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

8.4:700   Assisting Judge or Official in Violation of Duty

Primary Colorado References: CO Rule 8.4(f)
Background References: ABA Model Rule 8.4(f), Other Jurisdictions
Commentary: ABA/BNA § , ALI-LGL § 173, Wolfram §

See Section 3.5:200, Improperly Influencing a Judge, Juror, or Other Court Official.

8.4:800   Discrimination in the Practice of Law

Primary Colorado References: CO Rule 8.4
Background References: Other Jurisdictions
Commentary: ABA/BNA § 91:301

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

8.4:900   Threatening Prosecution

Primary Colorado References: CO Rule 4.5
Background References: Other Jurisdictions
Commentary: ABA/BNA § 1:801, 61:601

See Colo.RPC 4.5, Threatening Prosecution.

8.5   Rule 8.5 Disciplinary Authority; Choice of Law

8.5:100   Comparative Analysis of Colorado Rule

Primary Colorado References: CO Rule 8.5
Background References: ABA Model Rule 8.5, Other Jurisdictions
Commentary:

8.5:101      Model Rule Comparison

Colo.RPC 8.5 is identical to the original version of MR 8.5, but it differs substantially from the current MR 8.5, amended in 1993. The title of Colo.RPC 8.5 is simply “Jurisdiction,” while the title of MR 8.5 is “Disciplinary Authority; Choice of Law.” Colo.RPC 8.5 provides simply that “[a] lawyer admitted to practice in this jurisdiction is subject to the disciplinary authority of this jurisdiction although engaged in practice elsewhere.” Colo.RPC 8.5 does not contain any of the provisions in amended MR 8.5 regarding choice of law principles or the possibility that a lawyer may be subject to the disciplinary authority of two different jurisdictions concurrently.

The Comment to Colo.RPC 8.5 is identical to the Comment to the original version of MR 8.5. However, it differs significantly from the Comment to the current MR 8.5, amended in 1993. The Colorado Comment notes that applicable choice of law principles may apply when two jurisdictions impose conflicting obligations, including conflicts between state rules and those adopted for practice before a federal court; however, it does not specifically address the potentially governing choice of law rules. The Comment to the Model Rule expands on the specific choice of law principles set forth in MR 8.5.

8.5:102      Model Code Comparison

There was no counterpart of Colo.RPC 8.5 in the Code.

8.5:200   Disciplinary Authority

Primary Colorado References: CO Rule 8.5
Background References: ABA Model Rule 8.5, Other Jurisdictions
Commentary: ABA/BNA § 101:2001, ALI-LGL § 5, Wolfram § 3.2

See Section 0.2:200, Forms of Lawyer Regulation in Colorado. Where an attorney practicing outside Colorado is disciplined by the foreign jurisdiction, he may also be disciplined within Colorado for the same conduct. See People v. Cohan, 913 P.2d 523 (Colo. 1996). In such a reciprocal disciplinary proceeding, Colorado will generally impose the same discipline that was imposed in the other jurisdiction unless certain exceptions exist. Id. at 525. (citing People v. Meyer, 908 P.2d 123, 124 (Colo. 1995)). The exceptions to imposing the same discipline are (1) the procedure followed in the foreign jurisdiction did not comport with requirements of due process; (2) the proof in the foreign jurisdiction was insufficient; (3) the imposition of the same discipline would be a grave injustice; or (4) the misconduct warrants a substantially different form of discipline. The Cohan court applied these exceptions to recommend public censure for a lawyer who had committed misconduct violating Colo.RPC 3.5(c) in the State of Washington, and who had been barred for a period of three years from practicing in the federal courts of Washington. The more lenient disciplinary action was imposed in spite of the fact that the lawyer’s verbal abuse of the trial judge in Washington had resulted in a summary contempt order and the lawyer being jailed for 24 hours.

8.5:300   Choice of Law

Primary Colorado References: CO Rule 8.5
Background References: ABA Model Rule 8.5, Other Jurisdictions
Commentary: ABA/BNA § 101:2101, ALI-LGL § 2, Wolfram § 2.6.1

Colo.RPC 8.5 does not contain the detailed choice of law provisions of the Model Rule. The Comment notes that if a practice in another jurisdiction is substantial and continuous, it may constitute practice of law in that jurisdiction, and subject the lawyer to the rules of that jurisdiction under applicable choice of law principles. See Rule 5.5, supra, and “Negotiations and the Unauthorized Practice of Law,” 23 Colo.Law. 361 (1994).