Cba Ethics Committee Abstracts of Recent Letter Opinions

• Publication year: 2000
• Pages: 53
• Citation: Vol. 29 No. 11 Pg. 53

29 Colo.Law. 53 Colorado Lawyer 2000.

2000, November, Pg. 53. CBA Ethics Committee Abstracts Of Recent Letter Opinions

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53

Vol. 29, No. 11, Pg. 53

The Colorado Lawyer
November 2000
Vol. 29, No. 11 [Page 53]

Departments
CBA Ethics Committee
CBA Ethics Committee Abstracts Of Recent Letter Opinions

NOTE: The following abstracts of informal CBA Ethics Committee letter opinions are offered as potential sources of guidance to the Bar on matters of ethical concern. Because they abridge the letter opinions and omit facts and circumstances tending to identify the inquiring attorney, the abstracts are not exhaustive, and therefore should serve only as a starting point for, or supplement to, thorough research and analysis. Inquirers are advised, in advance, if the opinion provided to them will be abstracted and published For a number of reasons, the full letter opinions themselves are not provided to persons other than the original inquirer The letter opinions and these abstracts are issued for advisory purposes only and are not binding in any way upon the Colorado Supreme Court or the Appellate Discipline Commission

FIRST INQUIRY: Abstract 98/99-06

Summary of Facts Presented

An attorney charges a reduced hourly fee to certain clients, such as survivors of child abuse. The attorney also represents other clients pro bono, that is, without charging any attorney fee. In some cases, the attorney has been entitled to an award of fees against the opposing party.

Issue and Conclusion

The attorney asked whether it is ethically permissible to request an award of fees at an hourly rate, which is greater than that being charged to the pro bono and reduced fee clients.

Colorado Rule of Professional Conduct 1.5(a) provides that a lawyer’s fee shall be reasonable. The United States Supreme Court held in Blum v. Stenson, 465 U.S. 886 (1984) that a "reasonable" fee could be collected from an opposing party even though the client was receiving free representation from a non-profit organization. The Colorado Court of Appeals has similarly held that an attorney was entitled to recover fees from an opposing party, even though the attorney was providing pro bono representation. In re Marriage of Swink, 807 P.2d 1245 (Colo. App. 1991). These decisions are consistent with the principle underlying Colo. RPC 6.1. Allowing an attorney to collect reasonable fees for representing a pro bono client encourages attorneys to provide pro bono public service. Under the circumstances described, so long as the fee requested is reasonable, the request does not violate the Colorado Rules of Professional Conduct. It should be made clear to the client that the attorney is entitled to retain all attorneys’ fees obtained in this manner, less any fees the client may have already paid.

SECOND INQUIRY: Abstract 98/99-07

Summary of Facts Presented

The attorney entered into a written contingency fee agreement with the client to represent the client in a personal injury action. The contingency fee agreement between the attorney and the client did not provide that the attorney could recover attorney fees if the client discharged the attorney prior to the conclusion of the matter. After performing some services, the client discharged the attorney without cause.

Issues and Conclusions

Can the attorney ethically assert a charging lien, pursuant to CRS § 12-5-119 (1998), for attorney fees and costs incurred in representing the client who unilaterally terminated the attorney’s services without cause?

If the contingency fee agreement does not expressly provide that the attorney may recover attorney fees where the client has discharged the attorney without cause, the agreement does not substantially comply with C.R.C.P., Ch. 23.3 regarding the recovery of attorneys’ fees. As such, Colo. RPC 1.5 and 8.4(d) ethically prohibit the attorney from asserting a lien to recover such fees. Colo. RPC 1.5(c) provides that a lawyer’s fee may be contingent provided, inter alia, that a contingent fee shall meet all of the requirements of C.R.C.P., Ch. 23.3. Under Ch. 23.3, Rule 5(d), the contingency fee agreement must set forth "a statement of the contingency upon which the client is to be liable to pay compensation otherwise than from the amounts collected for him by the attorney." Further, Rule 6 prohibits an attorney from recovering any fees if he fails to comply substantially with all of the requirements of C.R.C.P., Ch. 23.3. In Elliott v. Joyce, 889 P.2d 43 (Colo. 1994), under similar circumstances the Supreme Court applied these rules to prohibit a recovery of attorney fees under a quantum meruit theory, as a sanction for failure to comply with C.R.C.P., Ch. 23.3.

Assuming the attorney has complied with the requirements in Colo. RPC 1.8(e) and...