In 1996, the Colorado Bar Association proposed substantial changes to several provisions of the Colorado Rules of Professional Conduct, and the addition of one new section which would permit the sale of a law practice. A hearing was held by the Colorado Supreme Court regarding the proposed changes on 17 September 1996. So far, only a few of the most minor proposals have been adopted by the Court. It is uncertain whether the Court will adopt any of the other recommendations, in any form.
This article sets forth the few changes made by the Colorado Supreme Court to the Colorado Rules in the last year(1), and some of the more interesting and controversial of the proposed changes. The remaining proposals can be found in 25 The Colorado Lawyer 3 (August 1996). The Committee Comments have been omitted from this article for brevity, but are a valuable, if not essential aid, in understanding the intent of the proposed changes. The Comments to the proposed changes are printed in their entirety in The Colorado Lawyer.
The proposed revisions to the attorney advertising rules are of particular interest, and produced interesting alliances of supporters and dissenters. The proponents of the advertising rules changes generally evince a concern regarding the reputation of the bar, and the proposed changes reflect a legislative philosophy of "more government and more regulation is better." The dissenters, among whose numbers is the author, believe the proposals are an unnecessary solution in search of a non-existent problem, and believe that the current rules -- which eschew the regulation of "good taste," but prohibit false and misleading speech -- are quite adequate.
Rules of Professional Conduct Amended and adopted by the Court, En Banc, October 17, 1996, effective January 1, 1997
C.R.C.P. Committee Comments to Rule 1.7. Conflict of Interest: General Rule, is as amended as follows:
The rule adopted is identical to Model Rule 1.7 except for section (c) which the Committee felt was necessary in order to provide more protection for a client whose consent is sought as a way of resolving a conflict of interest between the lawyer and client. The additional states that consent should not be obtained from a client in a situation in which a disinterested lawyer would advise the client not to agree to the representation.
FOR A DISCUSSION OF THE ETHICAL RAMIFICATIONS OF SEXUAL RELATIONSHIPS BETWEEN A LAWYER AND A CLIENT SEE THE COMMITTEE COMMENT TO RULE 8.4.
C.R.C.P. Committee Comments to Rule 8.4 Misconduct, is amended as follows:
The Committee added the proscriptions contained in C.R.Civ.P.241.6 and DR 1-102(a)(5) of the Code.
SEXUAL RELATIONSHIPS BETWEEN A LAWYER AND A CLIENT RAISE MANY ISSUES REGARDING A LAWYER'S PROFESSIONAL CONDUCT. FOR EXAMPLE, IN PEOPLE v. GOOD, 893 P.2d 101 (COLO. 1995), THE COLORADO SUPREME COURT HELD THAT BECAUSE OF THE RISKS INHERENT IN A SEXUAL RELATIONSHIP BETWEEN A LAWYER AND A CLIENT, SUCH RELATIONSHIP OR EVEN SUGGESTIONS OF SUCH A RELATIONSHIP WILL ALMOST ALWAYS VIOLATE RULE 8.4(H). SEE ALSO PEOPLE v. BERGNER, 873 P.2d 726 (COLO. 1994)
Terminology: "Partner" and Rule 7.5, is amended as follows:
"Partner" denotes a member of a partnership OR LIMITED LIABILITY
PARTNERSHIP, and shareholder in a law firm organized as a professional corporation.,
OR A MEMBER OF A LIMITED LIABILITY COMPANY.
Rule 7.5 Firm Names and Letterheads, is amended as follows: | |
(a) | [No change] |
(b) |
A lawyer in private practice shall not practice under tradename, a name that
is misleading as to the identity of the lawyer or lawyers practicing under such name, or firm
name containing names other than those of one or more of the lawyers in the firm; provided
the name of a professional corporation or professional association may contain "P.C. .,"
"L.L.C.," "L.L.P.," |
(c)--(f) | [No change] |
Selected Proposed Changes to the Colorado Rules of Professional Conduct Amended, not yet adopted.
RULE 1.17--SALE OF LAW PRACTICE
A lawyer or law firm may sell or purchase a private law practice, including good will, if the following conditions are satisfied:
(a) |
The seller ceases to engage in the private practice Of law in the State of Colorado.* |
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(b) |
The entire practice is sold to one or more lawyers or law firms. |
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(c) |
The fees charged clients shall not be increased by reason of the sale, and a purchaser shall not pass on the cost of good will to a client. The purchaser may, however, refuse to undertake the representation unless the client consents to pay fees regularly charged by the purchaser for rendering substantially similar services to other clients prior to the initiation of the purchase negotiations, except that any written fee agreements between seller and clients must be honored. |
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(d) |
Written notice of the pending sale shall be given at least sixty days prior to the date of transfer of responsibility for the client's file. Incident to the sale the seller shall provide to such client, via certified mail, return receipt requested, directed to the client's last known address, written notice, which shall include:
If the purchaser has identified a conflict of interest that the client cannot waive and that prohibits the purchaser from undertaking the client's matter, the notice shall advise that the client should retain substitute counsel to assume the representation and arrange to have the substitute counsel contact the seller. |
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(e) |
The notice may describe the purchaser's qualifications, including the seller's opinion of the purchaser's suitability and competence to assume representation of the client, but only if the seller has made a reasonable effort to arrive at an informed opinion. |
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(f) |
If certified mail is not effective to give the Client notice, the seller, or the purchaser in the event the selling lawyer is deceased or disabled, shall take such steps as may be reasonable under the circumstances to give the client actual notice of the proposed sale and the other information required in paragraph (c). If no response to the notice is received within 60 days of the mailing of such notice, or in the event the client's rights would be prejudiced by a failure to act during that time, the purchaser may act on behalf of the client until otherwise notified by the client. |
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(g) |
If substitution of the purchasing lawyer or law firm in a pending matter is required by the tribunal, the purchasing lawyer or law firm shall provide for same promptly. |
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(h) |
Admission to or withdrawal from a partners or professional company, retirement plans, and similar arrangements, or a sale limited to tangible assets of a law practice is not a purchase or sale for purposes of this Rule. |
RULE 5.4 PROFESSIONAL DEPENDENCE OF A LAWYER
(a) | A lawyer or law firm shall not share legal fees with a nonlawyer, except that: |
(1) | [Unchanged.] |
(2) | [Unchanged.] |
(3) |
a lawyer who purchases the practice of a lawyer pursuant to the provisions of Rule 1.17 may, in the case of a deceased lawyer or one for which a legal guardian or representative has been appointed, pay such estate or representative the purchase price; |
(4) | [same as prior subparagraph (3)] |
(b) - (d) | [Unchanged-] |
COMMENT [Unchanged.]
RULE 5.6-RESTRICTIONS ON RIGHT TO PRACTICE
A lawyer shall not participate in offering or making: | |
(a) |
a partnership or employment agreement that restricts the right of a lawyer to practice after termination of the relationship, except an agreement concerning benefits upon retirement or as permitted in Rule 1. 17; or |
(b) | [Unchanged-] |
(a) A lawyer shall not make an extra judicial statement that a reasonable person would expect to be disseminated by means of public communication if the lawyer knows or reasonably should know that it is likely to create a grave danger of imminent and substantial harm to the fairness of an adjudicative proceeding ...
(c) Notwithstanding paragraph (a) and (b) (1-5), a lawyer involved in the investigation or litigation of a matter may state without elaboration:
(1) | the general nature of the claim or defense; . . . |
(a) A lawyer who is participating or has participated in the investigation or litigation of a matter shall not make an extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication if the lawyer knows or reasonably should know that it will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.
(b) | Notwithstanding paragraph (a), a lawyer may state: | |||||||||
(1) | the claim, offense involved and, except when prohibited by law, the identity of the persons involved; | |||||||||
(2) | information contained in a public record; | |||||||||
(3) | that an investigation of matter is in progress; | |||||||||
(4) | the scheduling or result of any step in litigation; | |||||||||
(5) | a request of assistance in obtaining evidence and information necessary thereto; | |||||||||
(6) | a warning of danger concerning the behavior of a person involved, when there is reason to believe that there exists the likelihood of substantial harm to an individual or to the public interest; and | |||||||||
(7) |
in a criminal case, in addition to subparagraphs (1) through (6):
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(c) Notwithstanding paragraph (a), a lawyer may make a statement that a reasonable lawyer would believe is required to protect a Client from the substantial undue prejudicial effect of recent publicity not initiated by the lawyer or the lawyer's client. A statement made pursuant to this paragraph shall be limited to such information as is necessary to mitigate the recent adverse publicity.
(d) No lawyer associated in a firm or government agency with a lawyer subject to paragraph (a).
(a) A lawyer who is participating or has participated in the investigation or
litigation of a matter shall not make an extrajudicial statement that a reasonable person
would expect to be disseminated by means of public communication if the lawyer knows or
reasonably should know that it IS LIKELY TO CREATE A GRAVE DANGER OF IMMINENT AND SUBSTANTIAL HARM TO THE FAIRNESS OF AN ADJUDICATIVE
PROCEEDING will have a substantial likelihood of materially prejudicing an adjudicative
proceeding in the matter.
(b) | Notwithstanding paragraph (a), a lawyer may state: | |||||||||
(1) | the claim, offense or defense involved and, except when prohibited by law, the identity of the persons involved; | |||||||||
(2) | information contained in a public record; | |||||||||
(3) | that an investigation of a matter is in progress; | |||||||||
(4) | the scheduling or result of any step in litigation; | |||||||||
(5) | a request for assistance in obtaining evidence and information necessary thereto; | |||||||||
(6) |
a warning of danger concerning the behavior of a person involved, when there is reason to believe that there exists the likelihood of substantial harm to an individual or to the public interest; and |
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(7) |
in a criminal case, in addition to subparagraphs (1) through (6):
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(c) Notwithstanding paragraph (a), a lawyer may make a statement that a reasonable lawyer would believe is required to protect a client from the substantial undue prejudicial effect of recent publicity not initiated by the lawyer or the lawyer's client. A statement made pursuant to this paragraph shall be limited to such information as is necessary to mitigate the recent adverse publicity.
(d) No lawyer associated in a firm or government agency with a lawyer subject to paragraph (a) shall make a statement prohibited by paragraph (a).
CBA Advertising Task Force
March 7, 1996
As Revised by the CBA Board of Governors
April 13, 1996
(a) A lawyer shall not make a false or misleading communication about the lawyer or the lawyer's services. A communication is false or misleading if it:
(1) |
contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading; |
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(2) |
is likely to create an unjustified expectation about results the lawyer can
achiever, or states or implies that the lawyer can achieve results by mean that
violate the Rules of Professional Conduct or other law; |
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(3) |
compares the lawyer's services with other lawyers' services, unless the comparison can be factually substantiated. |
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(4) |
states or implies that a lawyer is competent to practice in a particular area of the law if the lawyer is not competent in that area of the law within the meaning of Rule 1.1; or |
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(5) |
makes claims, including claims about the following, if such claims cannot be factually substantiated:
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(b) |
Lawyers in the same law firm may not combine their years of experience and assert the sum total constitutes the years of experience of the firm or any lawyer of the firm. |
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(c) |
No lawyer shall, directly or indirectly, pay all or part of the cost of communications concerning a lawyer's services by a lawyer not in the same firm unless the communication discloses the name and address of the non-advertising lawyer, the relationship between the advertising lawyer, the relationship between the advertising lawyer and the non-advertising lawyer, and whether the advertising lawyer may refer any case received through the advertisement to the non-advertising lawyer. |
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(d) |
Unsolicited communications concerning a lawyer's services mailed to prospective clients shall be sent only be regular U.S. Mail, not by registered mail or other forms of restricted delivery. |
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(e) |
No reference shall be made in any communication concerning a lawyer's services that the communication has been approved by the Colorado Bar Association or the Colorado Supreme Court. |
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(f) |
The following information contained in advertisements in any medium, provided that the information complies with the Colorado Rules of Professional Conduct, shall be presumed not to violate the provisions of this rule:
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RULE 7.2 - ADVERTISING
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(a) |
A lawyer may communicate and publicize a lawyer's services and/or fees through any public media, such as a telephone directory, legal directory, newspaper or other periodical, outdoor advertising, radio or television, electronic media or through written or recorded communication including those governed by Rule 7.3, to prospective clients, consumers or the public at large. Such communications shall be referred to as "Advertisements." |
(b) |
A copy or recording of an Advertisement |
(c) |
A lawyer shall not give anything of value to a person for recommending the lawyer's
services, except that a lawyer may pay the reasonable cost of Advertisements |
(d) |
Any |
(e) | All Advertisements shall comply with the requirements of Rules 7.1 and 7.4. |
(f) |
No Advertisement shall contain a statement which states or implies; through testimonial, endorsement or otherwise, that a result achieved in a particular case or for a particular client can be obtained for the prospective client. |
(g) |
No Advertisement shall contain dramatizations or added background sound other than instrumental music. [This provisions was deleted by the Board of Governors.] |
(h) |
Any Advertisement that states or implies the client does not have to pay a fee if there is no recovery shall also disclose that the client may be liable for costs. This provision does not apply to Advertisements which only state that contingent or percentage fee arrangements are available, or that only state the initial consultation is fee. |
(I) |
No communication concerning a lawyer's services in the electronic media shall create the impression that the person who is speaking is the lawyer who will be handling the legal service or is professionally associated with that lawyer when that is not true. |
(j) |
The disclaimers and disclosures otherwise required by Rules 7.2 and 7.4 are not required where the information concerning the lawyer's services is contained in a law list, law directory or a publication intended primarily for the use of the legal profession. |
RULE 7.3- DIRECT CONTACT WITH PROSPECTIVE CLIENTS
(a) |
A lawyer shall not, by in-person or by live telephone contact, solicit professional employment from a prospective client with whom the lawyer has no family or prior professional relationship when a significant motive for the lawyer's doing so is the lawyer's pecuniary gain. |
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(b) |
A lawyer shall not solicit professional employment from a prospective client by written or recorded communication or by in-person or telephone contact even when not otherwise prohibited by paragraph (a), if:
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(c) |
No written or recorded communication from a lawyer soliciting professional employment from a prospective client known to be in need of legal services which arise out of personal injury to or death of any person and with whom the lawyer has no family or prior professional relationship may be made, unless the communication is issued more than 30 days after the occurrence of the event for which legal representation is being solicited, and the communication complies with Rule 7.1, Rule 7.2 and the following:
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(d) |
Every |
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(e) |
With respect to all communications governed by this Rule 7.3, a lawyer shall not knowingly permit, encourage or assist in any way employees, agents or other persons to solicit on behalf of the lawyer or the law firm in violation of the provisions of this rule. |
RULE 7.4 - COMMUNICATION OF FIELD OF PRACTICE
(a) |
A lawyer may communicate the fact that the lawyer does or does not practice in particular fields of law. A lawyer may state or imply that the lawyer is a specialist in accordance with Rule 7.1. |
(b) |
A lawyer admitted to engage in patent practice before the United States Patent and Trademark Office may use the designation "Patent Attorney" or substantially similar designation. |
(c) |
A lawyer engaged in admiralty practice may use the designation "Admiralty," "Proctor in Admiralty" or substantially similar designation. |
(d) |
A lawyer may permit his or her name to be listed |
(e) |
A lawyer available to act as a consultant to or as an associate of other lawyers in a particular branch of law or legal service may distribute to other lawyers and publish in legal journals an announcement of such availability. The announcement may state the lawyer is a specialist, in accordance with Rule 7.1. |
(f) |
In any Advertisement in which a lawyer affirmatively claims to be a specialist, such Advertisement shall contain the following disclosure: "A lawyer's description or indication of practicing in a limited area of law does not mean that any court, agency or board of the State of Colorado has certified such lawyer as a specialist or expert in that field of law." This disclaimer is not necessary if the Advertisement only lists the lawyer's or law firm's name, address and telephone number, in a publication under a category heading of a particular field of law, or if the lawyer uses the designations listed in paragraphs (b) and (c) of this rule. |
1. The Colorado Supreme Court has made substantial revisions to the rules governing the attorney discipline procedure, which are beyond the scope of this article.