Tcl - Ethics in Family Law - November 2005 - Professional Conduct and Legal Ethics
| Jurisdiction | Colorado,United States |
| Citation | Vol. 34 No. 11 Pg. 67 |
| Pages | 67 |
| Publication year | 2005 |
2005, November, Pg. 67. TCL - Ethics in Family Law - November 2005 - Professional Conduct and Legal Ethics
November 2005
Vol. 34, No. 11 [Page 67]
Professional Conduct and Legal Ethics
Ethics in Family Law
by Nancy L. Cohen
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, sbernhardt@nmkb.com
About The Author:
In 2005, 20 percent of the requests for investigation received by the Colorado Supreme Court Office of Attorney Regulation Counsel named domestic relations attorneys. Client complaints against domestic relations attorneys range from neglect and failure to communicate to incompetence, conversion, and making misrepresentations to the courts and third parties. Attorneys who practice in the domestic relations field were the subject of more complaints than attorneys in any other field of practice.
This article discusses several ethical requirements that are of special concern to family law attorneys. These involve communicating with clients, providing competent representation, keeping client information confidential, supervising assistants, following clients' directions, avoiding conflicts of interest, and making honest disclosures to courts and other attorneys. This article provides guidelines for ethical conduct with respect to fees, and addresses issues that may arise if an attorney fails to pay child support.
Common Ethical Pitfalls
The Rules of Professional Conduct ("Colo.RPC" or "Colorado Rules"), adopted by the Colorado Supreme Court in 1993, govern all aspects of attorney conduct. The following discussion focuses on the Colorado Rules that specifically address ethical issues relevant to family law attorneys.
Attorney Diligence
Colo.RPC 1.3 states, "A lawyer shall act with reasonable diligence and promptness in representing a client. A lawyer shall not neglect a legal matter entrusted to that lawyer." In a family law setting, potential Rule 1.3 violations occur when an attorney fails to timely file motions or pleadings, fails to respond to discovery requests, or fails to investigate the case. An attorney's neglect of a matter often results in violations of other rules as well, such as failing to communicate with clients, which is a violation of Colo.RPC 1.4 (see discussion below).
Occasionally, an attorney's neglect is so egregious that it rises to the level of abandonment and warrants disbarment. For example, in the case of In re Stevenson,1 a default proceeding, the attorney was hired to represent the wife in a dissolution of marriage proceeding. He was ordered to prepare and submit proposed orders to the court within twenty days of the date of the order, but he failed to do so. His client attempted to contact him but was unsuccessful.
Ultimately, the client contacted the guardian ad litem ("GAL"), who was able to contact the attorney. Thereafter, the attorney sent a proposed order to the GAL that was submitted to the court and signed in April 1997.
Additionally, the attorney failed to return funds to the client. In March 1997, opposing counsel forwarded $744.61 to the attorney, which represented the wife's share of money from the sale of livestock. The attorney failed to deliver these funds to the client. Later, when additional proceedings regarding custody occurred, the attorney again failed to return his client's calls, resulting in her hiring new counsel. The Colorado Supreme Court held that disbarment was appropriate and stated: "The hearing board found that Stevenson abandoned his client and misappropriated the $744.61 forwarded to him by the husband's lawyer. Both types of misconduct warrant dis barment."2
Communication With the Client
Colo.RPC 1.4 requires an attorney to keep a client reasonably informed about the status of a matter, to promptly comply with reasonable requests for information, and to explain matters to the extent reasonably necessary to permit the client to make informed decisions regarding the representation. Failure to keep the client informed deteriorates the attorney - client relationship and can result in significant discipline. For example, in In re Bobbitt,3 the attorney was suspended for one year and one day when he failed to communicate with his client, neglected the client's case, and lied to the court regarding the reasons his client failed to appear, which was due in large part to the attorney's failure to communicate with the client.
In People v. Paulson,4 a default proceeding, the attorney failed to communicate with his clients and neglected matters in four cases. In the first case, the attorney was hired to represent a client regarding visitation with her grandchildren. He failed to tell the client that he had filed motions in the case and failed to provide her with copies. The attorney failed to provide the client with a billing statement or her file despite her requests.
In the second matter, the attorney was hired to represent the mother in a paternity matter. The putative father agreed to blood testing for the determination. The attorney failed to inform the client of the date on which the testing was scheduled, and the client learned of the scheduled testing several months later during a contempt hearing. In February 1994, the court ordered the client to appear for blood testing. A few days later, the client left a phone message for the attorney saying she no longer wanted to pursue the paternity action. The attorney did not respond to her message.
Later, the client sent the attorney a letter terminating his services and requesting her file. Again, the attorney did not respond. In April, at the hearing on the contempt motion, the attorney signed a proposed order requiring his client to be at the laboratory for testing later that month; however, he never informed his client of the testing date.
In two other matters - one involving dissolution of marriage proceedings and custody matters, and the other involving only custody matters - the attorney failed to perform necessary services for the clients and failed to inform them of important matters occurring in their cases. He also failed to deposit an advance fee into his trust account, in violation of Colo.RPC 1.15(a). The attorney was suspended for one year and one day for his neglect, failure to communicate, and failure to deposit monies in his trust account.
THE OFFICE OF ATTORNEY REGULATION COUNSEL
The Office of Attorney Regulation Counsel is charged by the Colorado Supreme Court with the task of investigating and prosecuting claims of attorney misconduct and the unauthorized practice of law. In Colorado, at the time of licensing, attorneys swear to abide by the Colorado Rules of Professional Conduct. Violations of these rules may result in discipline, which may include sanctions in the form of a private reprimand, a public censure, suspension, and, in the most serious cases, disbarment. Public discipline summaries appear in The Colorado Lawyer in the "Summaries of Disciplinary Opinions" under the "From the Courts" section in each issue. Where an attorney is found to have committed a minor infraction, the attorney may be required to participate in a diversion program, an alternative to discipline, which includes various conditions, one of which may be attending Ethics School.
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