New Rules on Adr: Professional Ethics, Shotguns and Fish
| Publication year | 1992 |
| Pages | 1879 |
| Citation | Vol. 21 No. 9 Pg. 1879 |
1992, September, Pg. 1879. New Rules on ADR: Professional Ethics, Shotguns and Fish
Two new rules soon will begin their lives in the practice of law in Colorado. One of them is a set of rather expansive amendments to the existing ADR act,(fn1) which now will provide explicit authority for the courts in every district to make mandatory referrals of their cases to any one of a variety of forms of ADR. Judges can and probably will begin to make those referrals just as soon as the judicial system can make the necessary programs available. The other newcomer is a single sentence added to Rule 2.1 of the Model Rules of Professional Conduct, scheduled to become effective on January 1, 1993. It will provide that
[i]n a matter involving or expected to involve litigation, a lawyer should advise the client of alternative forms of dispute resolution which might reasonably be pursued to attempt to resolve the legal dispute or to reach the legal objective sought.
Although Colorado is among the last of the states to adopt the Model Rules,(fn2) it is, we believe, the first in the nation to have an explicit ADR requirement in its lawyers' professional code.(fn3) The ADR statute is equally on the leading edge; few states allow their courts a discretion to use ADR nearly as broad. ADR has not just joined the family in Colorado; it has adopted us. Although these two new rules were sired by rather different motives,(fn4) their objectives are the same---to accelerate the pace by which lawyers make ADR an element of their skill and a feature of their practice.
With orders of the courts about to be issued and an unprecedented ethical rule about to take effect, some have questioned just how attorneys should respond. This question brings to mind an afternoon a few years ago, when a seven-year-old neighbor was agitated about her cat being stuck in a tree. Her mother hatched a Rube Goldberg plan that involved a dead fish in the bottom of a garbage can, a rope tied to the handle of the can and tossed over a high branch, the can being hoisted into the tree, the cat voluntarily jumping into the can to get the fish and, willy-nilly, being lowered safely to the ground. Her father had a simpler idea. He offered to get his shotgun.
How you go about doing something depends, it seems, on what it is you want to accomplish. From one point of view, the objective was to rescue the cat from the tree. From the other, the problem was how to rid the tree of the cat. In one sense, the problem for Colorado attorneys might be how to meet the obligations of the new Model Rule, even---perish the thought---how to avoid the risk of professional liability that might be lurking within it.(fn5) Taken another way, however, the more important challenge might be how to embrace these new incentives as opportunities for enhancing the legal services attorneys make available to their clients.
Now, we confess to being a couple of unreconstructed ADR groupies, T-shirts and tie clasps and bumper stickers withal. Even if that were not so, we probably still would hold the view"that the best way to do the former is to do the latter---that an effort to join in advancing the objectives of the rules is the best (if not the only) way to satisfy their requirements and to avoid their potential risks.
That proposition cannot be proved, of course, but it is possible to offer some thoughts about both sides of the equation as starting points for more individualized thinking. What follow are, first, some brief reminders about what an "aspirational" rule of professional conduct actually means in terms of professional responsibility and professional liability---the conclusion being that the mere enactment of Model Rule 2.1 probably does not change very much. Second is the contention that the obligation to discuss and to do some ADR is likely a part of the practice by now anyway. Finally, there are some ideas about how attorneys with relatively less experience in ADR might begin their thinking about the meaning of the Rules and the statute in their own practices.(fn6)
The notion that ethical rules can be used as the predicates of professional liability has received some extensive academic analysis in the literature recently,(fn7)
while the case law from the several states ranges from one extreme (in a malpractice action the Rules cannot even be mentioned(fn8)) to the other (a rule of professional ethics is equivalent to a rule of substantive law(fn9)). The great majority of states, however, occupy the middle ground --- namely, that the violation of an ethical rule is not a per se predicate of professional liability, but that the Rules can be introduced to show what the general standards of conduct are in the relevant professional community.(fn10)
The Colorado Supreme Court has not yet had occasion to address this precise question, although in an earlier opinion involving a contingent fee dispute, the court did hold that the Wyoming rules, at least (the former Code of Professional Responsibility), do not have the force of substantive law.(fn11) Presumably, therefore (and again with the caveat that this question was not precisely in issue), it should not be the case that a violation of an ethical rule would amount to negligence per se, even if a plaintiff could trace a loss or injury to the attorney's failure to observe one. The U.S. District Court for the District of Colorado has, in fact, held as much, in an action in which a law firm was alleged to have committed a pattern of intentional violations of certain ethical rules.(fn12) In another malpractice case tried under Colorado law, the Tenth Circuit Court of Appeals permitted the introduction of expert testimony that had compared an attorney's conduct to the Code's rules, after determining the testimony had not been overly influential.(fn13) (It may or may not have mattered in that particular case that the court thought the misconduct as alleged was "gross under any standard.")
To further leaven the mix, the new Model Rules themselves include a preamble, which says:
Violation of a Rule should not give rise to a cause of action nor should it create any presumption that a legal duty has been breached....[T]hey are not designed to be a basis of civil liability.
In addition, the ADR part of Rule 2.1 is stated in what used to be known as aspirational rather than mandatory form: "... a lawyer should...." While the difference between the two is not as clear under the Model Rules as it has been under the old DR ("Disciplinary Rule") and EC ("Ethical Consideration") system of the Code, the Rules do recognize the distinction between "shall" and "should." Those things that attorneys "shall" do are potentially a matter of professional discipline. The...
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