Supreme Court to Consider Proposed Changes to the Colorado Rules of Professional Conduct (hearing, September 17, 1996)
| Publication year | 1996 |
| Pages | 3 |
| Citation | Vol. 25 No. 8 Pg. 3 |
1996, August, Pg. 3. Supreme Court to Consider Proposed Changes to the Colorado Rules of Professional Conduct (Hearing, September 17, 1996)
For the first time since the Colorado Rules of Professional Conduct became effective in 1993, the Colorado Supr eme Court is considering six proposed changes, described in detail below.
The first five proposed changes were recommended by the Ethics Committee of the Colorado Bar Association and approved by the Board of Governors at its April 1996 meeting. These recommendations were part of a comprehensive review process undertaken by the Ethics Committee over an eighteen-month period to consider changes to the Colorado Rules based in part on recent changes to the American Bar Association's Model Rules of Professional Conduct.
At the April meeting, the Board of Governors approved the Ethics Committee's recommendations, with two exceptions. First, the Board of Governors, while approving a new Rule 1.17, which would allow a sole practitioner to sell his or her practice under certain defined circumstances, did not recommend adoption of paragraph (a). Second, the Board of Governors tabled a proposed change to Rule 4.5 and sent it back to the Ethics Committee for further study.
Additionally, when considering alternative recommendations regarding amendments to Rule 3.6, concerning trial publicity, a motion to recommend only Version A to the Supreme Court was defeated by a vote of 25 -- 21. Thus, both Version A and Version B are before the Supreme Court.
With those changes, the main motion to approve the Ethics Committee's recommended changes was approved, with Justice Howard Kirshbaum abstaining from the discussion and vote.
At its April meeting the Board of Governors also considered the report and recommendations of the CBA Advertising Task Force. That task force, created in 1994 by then-CBA President John Dunn, recommended comprehensive changes to Rules 7.1 to 7.4 concerning advertising by lawyers. Following extensive discussion and debate, the Board of Governors approved the Advertising Task Force's recommendations by a vote of 41-38. Before the vote, a motion was approved to delete the recommended change to Rule 7.2(g), which would have prohibited lawyers from using dramatizations in advertisements.
Those abstaining from the discussion and vote on the advertising recommendations were Justice Kirshbaum, Judges Claus Hume, Larry Marquez, Steve Briggs, Zita Weinshienk, and Al Harrell, as well as Paul Chan and Sheila Hyatt.
What follows are a letter from former Ethics Committee Chair Al Wolf describing the Committee's recommended changes; materials relating to each of these changes; and the report and recommendations of the CBA Advertising Task Force (edited to reflect changes made by the CBA Board of Governors), including the minority report presented to the Board of Governors, but excluding exhibits.
Complete copies of these materials are available at the CBA offices. Call (303) 860-1115 or (800) 332-6736.
The Colorado Bar Association has requested the Colorado Supreme Court to amend Rules 1.7, 3.6, 5.1, 5.4, 5.6, 7.1, 7.2, 7.3, 7.4, 7.5, 8.4 and 8.5 and to adopt Rule 1.17 of the Colorado Rules of Professional Conduct, as the following communications reflect. The Supreme Court will conduct a hearing on the proposed amendments on Tuesday, September 17, 1996, at 1:30 P.M. in the Colorado Supreme Court Courtroom, 2 E. 14th Ave., Denver, Colorado. Written comments to the court concerning the proposals should be submitted to Mac V. Danford, Clerk of the Supreme Court, no later than August 30, 1996. Persons wishing to participate in the hearing should so notify Mr. Danford no later than August 30, 1996.
BY THE COURT,
Howard M. Kirshbaum, Justice
Colorado Supreme Court
March 7, 1996
Dear Members of the Board of Governors:
Following an eighteen-month review of the Colorado Rules of Professional Conduct, the Ethics Committee presents [six] recommended changes for your consideration and approval on April 13, 1996.(fn*)
These recommendations result from a comprehensive review of the Colorado Rules of Professional Conduct since they became effective on January 1, 1993. A number of the recommended changes are the result of amendments to the American Bar Association's Model Rules of Professional Conduct, while others result from suggestions by members of the Ethics Committee or other interested persons.
The Ethics Committee's review process began with the formation of a subcommittee chaired by the Honorable Daniel M. Taubman of the Colorado Court of Appeals and consisting of approximately twenty Ethics Committee members. The subcommittee includes three former chairs of the Ethics Committee and two members of the Supreme Court's Model Rules Committee, which recommended adoption of the Colorado Rules of Professional Conduct. The committee also included representatives of other CBA committees and the Supreme Court's Civil Rules Committee for consideration of particular matters.
The [six] recommended changes follow extensive discussion and deliberation before both the subcommittee and the full Ethics Committee. A summary of each of the proposed changes appears below and each corresponds to the Rules that follow. Attached to this letter are comprehensive materials for each proposed change, describing the present applicable rule, if any, the reasons for the proposed change, in some cases arguments against the proposed change, and the actual language of the proposed change to rules and/or comments.
It is our hope that the Board of Governors will recommend these proposed changes for adoption by the Colorado Supreme Court.
Here are the recommended changes:
1. Choice of Law - Rule 8.5. The Ethics Committee recommends adoption of a new, more specific Rule 8.5 following the change recommended by the American Bar Association House of Delegates in August 1993. Proposed Rule 8.5 would provide bright line guidance to attorneys in most multi-jurisdictional circumstances. The committee believes that this proposed rule would be beneficial in light of the continued proliferation in Colorado of national and interstate law firms, as well as Colorado law firms entering into various types of association with firms located in other states. Thus, the rule would provide guidance as to which state's ethics rules would govern in a multi-state situation.
2. Sale of a Law Practice by Sole Practitioner - Rule 1.17. The committee recommends adoption of a new Rule 1.17 which would allow a solo practicing lawyer, under narrowly defined circumstances, to sell his or her law practice. This change is based upon an addition to the ABA Model Rules which has been adopted in one form or another by ten other states. Like most of those states' rules, the Ethics Committee's proposal differs in several significant respects from the ABA Model Rule. The committee believes that this new rule is desirable because it would provide for the orderly transition of files of a sole practitioner who retires or dies, and would permit a retiring lawyer to benefit from the good will of his or her practice in a manner now possible only for lawyers who are members of law firms.
3. Trial Publicity - Rule 3.6. The committee urges adoption of revisions to C.R.P.C. 3.6 to follow changes recommended by the ABA, which in turn were dictated by the decision of the United States Supreme Court in Gentile v. State Bar of Nevada, 501 U.S. 1030, 111 S.Ct. 2720 (1991). The Ethics Committee recommends that Colorado Rule 3.6 be amended to conform to new ABA Model Rule 3.6. However, because of a difference between the existing Rule 3.6 and the ABA's Model Rule 3.6 on a point not covered by the Gentile decision, the Ethics Committee presents for adoption alternative versions of an amended Rule 3.6. The Board of Governors may approve the Ethics Committee's alternative recommendations, and leave it to the Supreme Court to choose between the alternatives recommended.
4. Minor Changes - Definition of "Partner" and Rule 7.5. To conform the Rules of Professional Conduct to recent changes made to Colorado Rule of Civil Procedure 265, effective December 1, 1995, the Ethics Committee recommends minor changes to the definition of "partner" in the terminology section of the rules and a minor change to Rule 7.5(b). Both changes would reference "limited liability partnership" and "limited liability company," forms of organization for professional practice now authorized by C.R.C.P. 265.
5. Restrictions on Sexual Relations Between a Lawyer and a Client - Rules 1.7 and 8.4. The committee recommends adoption of additions to the comments to Rule 1.7, regarding conflicts of interest, and Rule 8.4, misconduct, to make lawyers more aware of the potential ethical problems associated with sexual relations between a lawyer and a client and to refer lawyers to Colorado Supreme Court decisions in this area. On this matter, the Ethics Committee worked with a representative of a sub-committee of the CBA Grievance Policy Committee, which sought adoption of a new rule which would have declared that sexual relations between a lawyer and a client, in most circumstances, were unethical. The committee did not favor adoption of the proposed rule, but, as an alternative, approved recommendation of additions to the comments to these two rules to provide guidance to lawyers in this area. The CBA Grievance Policy Committee supports the proposed additions to the comments.
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