Limited Representation in Criminal Defense Cases

• Publication year: 2000
• Pages: 77
• Citation: Vol. 29 No. 10 Pg. 77

29 Colo.Law. 77 Colorado Lawyer 2000.

2000, October, Pg. 77. Limited Representation in Criminal Defense Cases

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77

Vol. 29, No. 10, Pg. 77

The Colorado Lawyer
October 2000
Vol. 29, No. 10 [Page 77]

Specialty Law Columns
The Ethics Column
Limited Representation in Criminal Defense Cases
by Gerald D. Pratt

Your next door neighbor receives a speeding ticket and asks you for advice on whether to pay the fine or fight it in court. The neighbor wants to know what will happen on the return date, whether she can have her case heard by a jury and whether she can get the charges reduced to a no-point violation. She also asks if her auto insurance premium will be increased and whether she has to let her insurance company know that she received a ticket

Other neighbors have an 18-year-old son who became involved in an argument at a graduation party. The teenagers had been drinking beer, some pushing occurred, and one boy fell hitting the side of his head and suffering a brain injury. The neighbors? son has been charged with felony assault, and the injured boy and his parents have filed a civil lawsuit. The neighbors? homeowner?s insurance carrier has declined to provide coverage or a defense because the "assault" was an intentional act. The neighbors want to fight the insurance company because their son never intended to hurt anyone?this was simply an accident resulting from poor judgment. They also want the best possible defense for their son on both the criminal charge and the civil lawsuit and want to know if you will "take the case."

A third neighbor is the president of a corporation that manufactures industrial solvents. Federal prosecutors and the EPA have been investigating the neighbor?s corporation for alleged environmental crimes, and he has just been charged personally with attempted bribery and attempted intimidation of a key witness. He wants you to "handle the defense."

As illustrated by these examples, a cry for help by a prospective client caught in a legal bind may trigger a multitude of issues regarding the scope of representation you potentially may undertake. What will it mean if you agree to "take the case" or "handle the defense"? Is it ethically permissible for you to handle some, but not all, aspects of these matters? May you provide some limited advice or assistance, or must you formally appear as defense counsel and represent the client through the investigation, trial, and appeal? If representation will be limited, who sets the limits?

This article discusses limiting the scope of representation and mentions special considerations that may come into play in criminal defense cases. The article also addresses the ethics rules and rules of criminal and civil procedure applicable in Colorado courts with regard to limited representation, as well as those rules that are applicable in the federal courts in Colorado.

Limiting the Scope of Representation

A hot topic in legal ethics over the last few years has been the "unbundling" of legal services. Lawyers "unbundle" legal services when they provide clients with some, but not all, of the work normally involved in a matter and limit representation to a specific task or series of tasks.1

Unbundling is both commonplace and traditional in transactional matters, such as advising a client on issues that may arise when he or she personally negotiates an agreement with a third party, reducing an agreement a client already has negotiated to writing, or assisting a client to prepare for an administrative hearing regarding zoning or licensing matters.2 Other examples include advising a client about the tax consequences of anticipated financial activities, discussing the legal consequences of a client?s proposed conduct, counseling a client about the meaning and application of pertinent law, and helping a client draft a living will or medical durable power of attorney. In each instance, lawyers provide a discrete legal service, rather than handling all aspects of the matter. In litigation, to date, unbundling has been discussed mostly with regard to civil litigation and family law.3 However, it also may apply to criminal defense cases.

The starting point for an analysis of limited representation (or "unbundling") in any area of Colorado law is Colorado Rule of Professional Conduct ("Colo.RPC") 1.2, which currently governs the scope and objectives of a lawyer?s representation of a client. As originally adopted in 1993, Colo. RPC 1.2 carried the title "Scope of Representation"; however, the text...