House of Delegates Approves the Ethics 2000 Report: the New Model Rules Compared With the Colorado Rules

• Publication year: 2002
• Pages: 37
• Citation: Vol. 31 No. 5 Pg. 37

31 Colo.Law. 37 Colorado Lawyer 2002.

2002, May, Pg. 37. House of Delegates Approves the Ethics 2000 Report: The New Model Rules Compared with the Colorado Rules

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Vol. 31, No. 5, Pg. 37

The Colorado Lawyer
May 2002
Vol. 31, No. 5 [Page 37]

Departments
ABA Delegates' Report
House of Delegates Approves the Ethics 2000 Report: The New Model Rules Compared with the Colorado Rules
by Robert R. Keatinge

The American Bar Association ("ABA") House of Delegates approved the entire Ethics 2000 Report at its Midyear Meeting in February 2002. As a result, the ABA has adopted all of the Rules of Professional Conduct ("Model Rules"), and these rules are now ready for consideration by the states. This article, which is divided into three parts, is presented in chart form, comparing the Model Rules with the Colorado Rules of Professional Conduct ("Colo.RPC" or "Colorado Rules"). Other changes, not part of the Ethics 2000 Report, will be discussed at the 2002 ABA House of Delegates Annual Meeting in August. Among these are rules dealing with multijurisdictional practice (practice across state lines) and strategic alliances among professional firms. A report on any changes to these rules will be published in this Department after the Annual Meeting

In this article, the rules amended in the Ethics 2000 Report are referred to as the Model Rules (those in effect before the adoption of the Ethics 2000 Report are referred to as the "Old Model Rules"). This Part I compares Model Rules 1.0 through 1.14. Subsequent issues of The Colorado Lawyer will present a comparison of the balance of the rules Generally, the Model Rules follow the organization of the Old Model Rules, and this organization, in turn, was incorporated into the Colorado Rules. It should be noted that the Model Rules eliminate Model Rule 2.2 by folding its contents into Model Rule 1.6. Also, several new rules have been added

Model Rule 1.0: Terminology

The material in Model Rule 1.0 was covered in the Old Model Rules and in the Introductory Commentary of the Colorado Rules. The newly adopted Model Rules consolidate the definitions applicable to client consent into new definitions of "informed consent," "confirmed in writing," and "written." Informed consent is defined in the Model Rules as "agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct." Three levels of consent in the rules are: (1) "informed consent," which need not be in writing or signed by the client; (2) "informed consent, confirmed in writing," which must be communicated in written form by the lawyer, but does not have to be signed by the client; and (3) "informed consent confirmed in writing signed by the client," which requires the affirmative written consent of the client.

The following Model Rules require that the client give informed consent, but do not require that it be confirmed in writing: Model Rules 1.2(c) (client consent to the lawyer's limiting the scope of representation); 1.6(a) (client consent to the waiver of confidentiality); 1.8(b) (consent to lawyer's use of information); 1.8(f) (consent to the lawyer being compensated by someone other than the client); and 2.3(b) (consent to giving a third-party evaluation where the lawyer knows that the evaluation is likely to affect the client materially and adversely).

As with the Colorado Rules, the concept of client consent comes into play under several of the Model Rules. Those Model Rules that require consent confirmed in writing are as follows: 1.5(e)(2) (dealing with sharing of fees); 1.7(b)(4) (dealing with waiver of a concurrent conflict); 1.9(a) and (b) (dealing with waivers from former clients); 1.11(a)(2) (dealing with consent by a former government employer); 1.12(a) (waiver of the prohibition on a judge or arbitrator representing a party to the arbitration); and 1.18 (new rule) (providing for a waiver of a lawyer's representation of a party after receiving disqualifying information from a prospective client).

The following Model Rules require the signature of the client: 1.5(c) (dealing with contingent fee arrangements); 1.8(a) (consent to a transaction between the lawyer and client); and 1.8(g) (consent to a lawyer's representation of more than one client in a criminal matter). The Model Rules generally match the Colorado Rules in this respect, except that Colo.RPC 1.5(c) requires that the basis of the fee be communicated in writing, while the corresponding Model Rule requires that any arrangement by which the client consents to a lawyer sharing fees with another lawyer be confirmed in writing. Moreover, Model Rule 1.7(c) does not require that the consent to certain conflicts be signed by the client, but Colo.RPC 2.2(a)(1) (which deals with concurrent representation) does require consent in writing from the client. Other Model Rules, like the corresponding Colorado Rules, require informed consent, but differ from the corresponding Colorado Rules in that they do not require written consent from the client. These are Model Rules 1.8(g), 1.9(a) and (b)(2), 1.11(c)(i), and 1.12

Model Rule 1.1: Competence

The Model Rule, Colorado Rule, and Old Model Rule are identical...