Discipline Against Lawyers for Conduct Outside the Practice of Law

• Jurisdiction: Colorado,United States
• Citation: Vol. 32 No. 4 Pg. 75
• Pages: 75
• Publication year: 2003

32 Colo.Law. 75 Colorado Lawyer 2003.

2003, April, Pg. 75. Discipline Against Lawyers for Conduct Outside the Practice of Law

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75

Vol. 32, No. 4, Pg. 75

The Colorado Lawyer
April 2003
Vol. 32, No. 4 [Page 75]

Specialty Law Columns
Professional Conduct and Legal Ethics
Discipline Against Lawyers for Conduct Outside the Practice of Law
by Patrick T. O'Rourke

This column is sponsored by the CBA Ethics Committee Articles published in this column do not necessarily reflect the views of the Committee and may be those only of the individual authors

Column Editor

Susan Bernhardt, Denver, of Netzorg, McKeever, Koclanes & Bernhardt LLP - (303) 864-1000

About The Author:

This month's article was written by Patrick T. O'Rourke, Greenwood Village, a shareholder in the firm of Montgomery Little & McGrew, P.C., where he emphasizes litigation and the defense of licensed professionals; and a member of the CBA Ethics Committee - (303) 773-8100, porourke@mlmpc. com. The author thanks David C. Little, Kevin J. Kuhn, and Kari MacKercher Hershey for their comments on a draft of this article.

This article discusses discipline that may be taken against attorneys based on their private conduct unrelated to the practice of law.

In recent years, the trend around the country has been to expect lawyers to always conform to formal rules of professional conduct, even when they are engaged in "private" activities separate from lawyers' professional activities. Model Rules of Professional Conduct ("Model Rules") are promulgated by the American Bar Association ("ABA") and adopted in some version by each state. In Colorado, they are known as the Rules of Professional Conduct ("Colorado Rules" or "Colo.RPC").

Many scenarios may put a Colorado lawyer in a compromising situation with regard to the Colorado Rules. For example, suppose two non-lawyers and a lawyer want to buy season tickets for the Colorado Rockies. The non-lawyers give the lawyer $2,500 and tell him to buy the best seats he can get. The lawyer is in a bit of a cash crunch, so he deposits the checks into his personal bank account. When baseball season arrives and there are no tickets for Opening Day, could the Colorado Supreme Court ultimately disbar the attorney? The answer is "yes."1 This article discusses the regulation of lawyers in their private capacities and the basis for disciplinary action under the Colorado Rules.

Reasons to Limit Discipline
to Actions Undertaken Within
Practice of Law

Most of the licensed professions in the state of Colorado are regulated by statute. Such regulatory statutes generally contain explicit descriptions of each profession's activities. For example, the definition of the "practice of medicine" in Colorado includes

suggesting, recommending, prescribing, or administering any form of treatment, operation, or healing for the intended palliation, relief or cure of any physical or mental disease, ailment, injury, condition or defect of any person. . . .2

Similarly, barbers can refer to statute to learn that "barbering" includes "shaving or trimming the beard, cutting the hair, giving facial or scalp massage . . . [and] dyeing the hair or applying hair tonic."3

With such statutory definitions, the General Assembly limited the scope of the professional licensing agencies' jurisdiction. Unless otherwise stated in the statutes, it would appear that these agencies lack the authority to discipline professionals for their private conduct.4

In contrast to other professions, there is no definition of the "practice of law" in either the statutes or the Colorado Rules. The comments to the Colorado Rules indicate only that "the definition of the practice of law is established by law and varies from one jurisdiction to another."5 Moreover, the Colorado Rules do not contain any language that limits their application to either a lawyer's professional conduct or the "practice of law."

The Colorado Supreme Court could have adopted limiting language but declined to do so. Model Rule 5.7 states that "a lawyer shall be subject to the Rules of Professional Conduct with respect to the provision of law-related services. . . ."6 Law-related services are those "services that might reasonably be performed in conjunction with and in substance are related to the provision of legal services,"7 such as title insurance, financial planning, accounting, trust services, real estate counseling, legislative lobbying, economic analysis, social work, psychological counseling, and tax preparation.8

In jurisdictions that have adopted Model Rule 5.7, an argument exists that the drafters implicitly foreclosed disciplinary action against lawyers in connection with activities that do not implicate either practicing law or law-related services.9 However, that argument may not be available in Colorado because the Colorado Rules contain no such limiting language.

Disciplinary Authority
Beyond Practice of Law

For several decades, the authorities regulating the legal profession have endorsed the idea that lawyers must hold themselves to a higher standard than members of the general public. Such an idea was implicit in the Ethical Considerations set forth in the Colorado Code of Professional Responsibility, which predated the Colorado Rules.10 The Ethical Considerations...