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Proposed Amendments to the
Colorado Rules of Professional Conduct
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© 1997 Charles F. Luce, Jr.
All Rights Reserved Worldwide

         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:


COMMITTEE COMMENT

         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:


COMMITTEE COMMENT


         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)

Appendix to Chapters 18 to 20, C.R.C.P. Terminology" "Partner" and Rule 7.5. Firm Names and Letterheads Amended and Approved for Publication

Terminology: "Partner" and Rule 7.5, is amended as follows:

Terminology" Partner"

         "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.

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:

RULE 5.4 PROFESSIONAL DEPENDENCE OF A LAWYER

COMMENT [Unchanged.]

RULE 5.6-RESTRICTIONS ON RIGHT TO PRACTICE


APPENDIX A
RULE 3.6 -TRIAL PUBLICITY
(Colorado Rule, in Relevant Part)

         (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:

Version A of Proposed Colorado Rule 3.6 -- Trial Publicity

(Identical to New ABA Rule 3.6)

         (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.

         (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).

Version B of Proposed Colorado Rule 3.6-TRIAL PUBLICITY

[Same as Version A Except for 3.6(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

(7) in a criminal case, in addition to subparagraphs (1) through (6):
(I) the identity, residence, occupation and family status of the accused;
(ii) if the accused has not been apprehended, information necessary to aid in apprehension of that person;
(iii) the fact, time and place of arrest; and
(iv) the identity of investigating and arresting officers or agencies and the length of the investigation

         (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).

PROPOSED AMENDMENTS TO THE COLORADO
RULES OF PROFESSIONAL CONDUCT -- RULES 7.1 - 7.4

CBA Advertising Task Force
March 7, 1996
As Revised by the CBA Board of Governors
April 13, 1996

INFORMATION ABOUT LEGAL SERVICES

RULE 7.1-- COMMUNICATIONS CONCERNING A LAWYER'S SERVICES

         (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:

RULE 7.2 - ADVERTISING
(a)

Subject to the requirements of Rules 7.1 and 7.3, a lawyer may advertise services through public media, such as a telephone directory, legal directory, newspaper or other periodical, outdoor advertising, radio or television, or through written or recorded communication.

(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 or communication shall be kept by the lawyer for two four years after its last dissemination along with a record of when and where it was used.

(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 or communications permitted by this rule and may pay the usual charges of a not-for-profit lawyer referral service or other legal service organization.

(d) Any communication Advertisement made pursuant to this rule shall include the name of at least one lawyer responsible for its content.
(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.

(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:

(1) the prospective client has made known to the lawyer a desire not to be solicited by the lawyer; or
(2) the solicitation involves certain coercion, duress or harassment.
(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:

(1)

No communication may be made if the lawyer knows or reasonably should know that the physical, emotional or mental state of the prospective client could not exercise reasonable judgment in employing a lawyer. Unless the lawyer has actual knowledge to the contrary, it shall be presumed that the recipient of the communication is able to exercise reasonable judgment in employing a lawyer where the communication is sent by the lawyer at least 30 days after the occurrence of the event for which legal representation is being solicited.

(2)

No such communication may be made if the lawyer knows or reasonably should know that the person to whom the communication is directed is represented by a lawyer in the matter.

(3)

If a lawyer other than the lawyer whose name or signature is contained in the communication will actually handle the case or matter, or if the case or matter will be referred to another lawyer or law firm, any such communication shall include a statement so advising the prospective client.

(4) No such communication shall be made to resemble legal pleadings or other legal documents.
(5)

Any such written communication shall not reveal on the envelope or on the outside of a self-mailing brochure or pamphlet the nature of the prospective client's legal problem.

(6)

All disclosures required by all subparagraphs of Rules 7.2 and 7.4 must be set forth in bold or italicized type not smaller than the primary type utilized in the text of the document governed by this rule

(7)

A copy or recording of such communication and a sample of the envelopes in which the communications are enclosed shall be kept for a period of four years from the date of dissemination of the communication.

(d)

Every written or recorded communication from a lawyer soliciting professional employment from a client known to be in need of legal services in a particular matter and with whom the lawyer has no family or prior professional relationship; governed by this Rule 7.3 shall include the words "Advertising Material" "THIS IS AN ADVERTISEMENT" in bold or italic print no smaller than 12 point type on the outside of the envelope and at the beginning and ending of any documents or recorded communication recording contained therein.

(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 in by a lawyer referral service offices according to the in specific fields of law in which the lawyer will accept referrals.

(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.



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