Colorado's New Rules of Professional Conduct: a More Comprehensive and Useful Guide for Lawyers
| Publication year | 1992 |
| Pages | 2101 |
| Citation | Vol. 21 No. 10 Pg. 2101 |
1992, October, Pg. 2101. Colorado's New Rules of Professional Conduct: A More Comprehensive and Useful Guide for Lawyers
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On January 1, 1993, the new Rules of Professional Conduct ("Rules") adopted by the Colorado Supreme Court ("Court") take effect and replace the present Code of Professional Responsibility ("Code"). The Rules are the final product of several years of consideration of the Model Rules of Professional Conduct adopted by the American Bar Association in 1983 ("Model Rules").
The complete Rules are published in this issue of The Colorado Lawyer beginning at page 2125. The "Preface and Historical Perspective" in the Rules describes the history of their development and adoption. Also, a subcommittee of the CBA Ethics Committee has put together correlation tables cross-referencing related sections of the Rules and the Code. These appear at the end of the Rules section at page 2173.
This article highlights the most important changes in emphasis, substance and format in the Rules as compared to the Model Rules and the Code. The article is not intended to be an exhaustive comparison and analysis, but to spotlight material changes. In some instances, the article also discusses ethical issues of continuing concern.
The basic duties of loyalty, fairness, dedicated service to clients and a special responsibility for the quality of justice are the essence of both the Code and the Rules. That being so, are there changes in the Rules that make a difference?
The answer is profoundly, "Yes." The adoption of the Rules by the Court heralds significant changes in the normative standards which guide lawyers in the responsible practice of law. These changes are in the purpose, format, context, perspective, scope, substance and emphasis of the Rules.
One of the hotly debated issues in the consideration of the adoption of the Rules was their purpose. The Code had a dual purpose. It was designed to be both "an inspirational guide for the members of the profession and as a basis for disciplinary action...."(fn1) In opting for the Rules, the decision was made to limit their purposes. Except for an occasional "should," the Rules are not designed to be inspirational guides. They are "partly obligatory and disciplinary and partly constitutive and descriptive in that they define a lawyer's professional role," but they are not intended to be inspirational.(fn2)
Nevertheless, as in the case of any codification, the Rules provide a valuable teaching function. They create a form which ultimately influences and shapes behavior. As such, the clear purpose of the Rules is to set forth professionally responsible paths for lawyers to follow.
The format of the Code is the three-tiered structure of Canons, Ethical Considerations ("EC") and Disciplinary Rules ("DR"). In contrast, the Rules are in the familiar format of the Restatements of the Law. A specific Rule setting the standard of professional conduct is followed by Comments. With just a few exceptions, the Rules contain either the imperatives "shall" and "shall not" or the discretionary "may."
The Comments do not add obligations to the Rules. Rather, they provide guidance for practicing law in compliance with the Rules. Although there are no ECs in the Rules, some Code ECs are incorporated in the Comments. Worth special note is that the Court included a provision that lawyers "should" give alternate dispute resolution ("ADR") advice in matters involving or expected to involve litigation. This requirement is neither imperative nor discretionary. Time will reveal whether "should" becomes "shall" or "may," and to what extent ADR advice is widely given and considered in appropriate circumstances as intended.
The Rules recognize they are not the sole source of guidance for professionally responsible conduct. Specifically,
The Rules, more than the Code, recognize many different lawyering functions and their corollary responsibilities. The Rules frame these responsibilities in the context of societal, collegial and personal relationships. Because these relationships co-exist, the lawyer's responsibilities in one, e.g., loyalty in the lawyer-client relationship, compete with the lawyer's responsibilities in another, e.g., the lawyer's duty of candor to others. The Rules provide an analytical framework for determination of the priority of duties.The Rules presuppose a larger context shaping the lawyer's role. That context includes court rules and statutes relating to matters of licensure, laws defining specific obligations of lawyers and substantive and procedural law in general.... The Rules do not, however, exhaust the moral and ethical considerations that should inform a lawyer, for no worthwhile human activity can be completely defined by legal rules. The Rules simply provide a framework for the ethical practice of law.(fn3)
The responsibilities of lawyers are not limited to client representation. While representation is central, lawyers are responsible to a justice system essential to a free and democratic society, to society as public citizens who possess unique qualities, and to colleagues as members of a learned profession. These several responsibilities
often are the source of conflicts which are "resolved through the exercise of sensitive professional and moral judgment guided by the basic principles underlying the Rules."(fn4)
The perspective of the Rules on lawyers'...
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