Court Business - April 2006
| Publication year | 2006 |
| Pages | 119 |
2006, April, Pg. 119. Court Business - April 2006
April 2006
Vol. 35, No. 4 [Page 119]
Supreme Court Rules Committee
Notice of Hearing Regarding Proposed Changes to the
Hearing Scheduled for June 15, 2006, 1:30 p.m.
Comments Requested by May 25, 2006
The Colorado Supreme Court will hear comments to its proposed changes to the Colorado Rules of Professional Conduct. An original and eight copies of the written comments on the proposed changes should be filed with Susan J. Festag, Clerk of the Colorado Supreme Court, at 2 E. 14th Ave., Denver, CO 80203, not later than 5:00 p.m., Thursday, May 25, 2006.
A summary of the proposed rules is printed below. This summary can be found online at http://www.courts.state.co.us/supct/committees/profconductdocs/changes.htm. Complete proposed changes can be found at http://www.courts.state.co.us/supct/committees/profconductdocs/sc-appendixa-1205.pdf.
By the Court:
Michael L. Bender, Justice
____________________
Colorado Supreme Court
Colorado Rules of Professional Conduct
Report and Recommendations Concerning the
December 30, 2005
The Colorado Supreme Court Standing Committee on the Colorado Rules of Professional Conduct respectfully submits to the Colorado Supreme Court this Report and Recommendations Concerning the American Bar Association Ethics 2000 Model Rules of Professional Conduct.
I. Introduction and Process of the Committee
The Colorado Supreme Court (the "Court") adopted the current Colorado Rules of Professional Conduct (the "Current Colorado Rules") effective January 1, 1993. Those rules are primarily based upon the version of the American Bar Association ("ABA") Model Rules of Professional Conduct that was in effect at that time (the "Prior Model Rules"). In 2002, the ABA's House of Delegates approved the most recent version of the ABA Model Rules of Professional Conduct (the "New Model Rules"), which are the work of the ABA's Ethics 2000 Commission. The New Model Rules replace the Prior Model Rules.
As of November 28, 2005, nineteen states and the District of Columbia have adopted some version of the New Model Rules. See http://www.abanet.org/cpr/jclr/ethics_2000_status_chart.
In 2002, at the request of the Court's Office of Attorney Regulation Counsel ("OARC"), the Court appointed an Ad Hoc Committee to review the New Model Rules.1 That Committee (the "Ad Hoc Committee") prepared a written report with recommendations concerning whether and to what extent the Colorado Supreme Court should adopt the New Model Rules. See http://www.courts.state.co.us/supct/committees/profconductdocs/ethics_2000_exec_summary.pdf; http://www.courts.state. co.us/supct/committees/profconductdocs/ethics_2000_clean.pdf.
Shortly before the completion of the Ad Hoc Committee's report, the Court established the Standing Committee on the Colorado Rules of Professional Conduct (the "Standing Committee" or "Committee"), which is now the principal conduit to the Court for recommendations regarding the Current Colorado Rules.2 Accordingly, the Court referred the Ad Hoc Committee's report to the Standing Committee. A subcommittee (the "Rules Subcommittee" or "Subcommittee") was appointed to intensively study the New Model Rules and review the Ad Hoc Committee's recommendations.3
From June 2004 through November 2005, the Rules Subcommittee met monthly and delivered seven written reports to the Standing Committee. At eight half-day meetings between October 2004 and December 2005, the Standing Committee discussed the Subcommittee's recommendations. The recommendations contained in this report were approved by a majority of the members of the Standing Committee attending the meetings when the specific rules were addressed.
Early in the process, the Standing Committee (like the Ad Hoc Committee) unanimously concluded that uniformity between jurisdictions adopting the New Model Rules is important. Uniformity enables the meaningful use of precedent from courts and ethics committees in other jurisdictions. Moreover, the increase in multi -jurisdictional law practice (recognized by this Court when it adopted C.R.C.P. 220 through 222) renders uniform ethics rules beneficial to the Court and the bar alike.
To effectuate this preference for uniformity, the Committee utilized an informal presumption: Unless existing Colorado law or public policy - as established by prior rules, Court decisions, or Colorado Bar Association ("CBA") Ethics Committee opinions - justified a departure from a New Model Rule, the Committee would recommend adoption of the New Model Rule. However, this presumption was rebuttable and the Committee occasionally recommended a unique Colorado rule instead of a New Model Rule based on a determination that the recommended rule would be substantially better than the New Model Rule; but even in these situations, the Committee carefully weighed the benefits against the detriments of a non-uniform rule. The Committee also considered uniformity with respect to the comments to the rules; but the comments, by definition, do not establish black-letter standards and, therefore, the Committee deemed uniformity in the comments to be less critical.
Following the ABA's recommendations, the Committee has retained the New Model Rules' numbering system wherever possible. Thus, where the Committee recommends additional rules, those additional provisions appear in new numbered or lettered sections. Similarly, where the Committee has recommended the addition of a non-uniform comment, it is given a non-uniform paragraph number (such as [7A], for a new comment placed between New Model Rule Comments [6] and [7]).
Where there were substantial minority views on a particular rule, this report summarizes those minority positions. The detailed minutes of the Standing Committee's meetings, available at http://www.courts.state.co.us/supct/committees/profconductcomm.htm, document the debates and votes on each proposed rule.
This report provides the rules and comments that the Committee recommends in three formats: (1) In Appendix A, a "clean" version; (2) in Appendix B, a blackline version that shows changes, where possible, from the Current Colorado Rules; and (3) in Appendix C, a blackline version that shows changes from the New Model Rules.
II. Summary of Recommendations
Preamble. Adopt New Model Rules Preamble but modify "zealous" representation language.
Scope. Adopt New Model Rules Scope section but modify language relating to use of rule violations in civil proceedings.
Rule 1.0 - Terminology. Adopt New Model Rule. Adopt New Model Rule Comment but add new Paragraph [7A] explaining that when applying Rule 1.0(f), which defines "knowingly," etc., to rules that expressly specify knowledge as the culpable mental state, the Court will no longer follow precedent that has equated knowledge with recklessness.
Rule 1.1 - Competence. Adopt New Model Rule and Comment.
Rule 1.2 - Scope of Representation and Allocation of Authority between Client and Lawyer. Adopt New Model Rule but add language to reflect the limited representation of pro se parties authorized in Colorado. Adopt New Model Rule Comment.
Rule 1.3 - Diligence. Adopt New Model Rule and Comment.
Rule 1.4 - Communication. Adopt New Model Rule. Adopt New Model Rule Comment but add new Paragraph 7A to cross-reference to Rule 1.5, concerning Fees and Expenses.
Rule 1.5 - Fees and Expenses. Adopt a version of Rule 1.5 that combines New Model Rule and Current Colorado Rule, to reflect the unique provisions in Current Colorado Rule. Adopt all of New Model Rule Comment except for the paragraph addressing prohibited contingent fees, add portions of Current Colorado Comment addressing Sather issues, and add new Paragraph [3A] to Comment addressing when a change in the basis or amount of the fee is subject to Rule 1.8(a), concerning business transactions with clients.
Rule 1.6 - Confidentiality of Information. Adopt New Model Rule with the addition of the words "other law or court order" in section (b)(4), to authorize a lawyer to secure legal advice regarding compliance with any of the lawyer's legal or ethical responsibilities with respect to the representation. Adopt New Model Rule Comment but add language to Paragraphs [9] (concerning permissive disclosures to secure legal advice about the lawyer's compliance with the Rules) and [15] (concerning the distinctions between prohibited, permissive and mandatory disclosures under various Rules), and add new Paragraph [5A], to address disclosure of client information for purposes of conflict check when a lawyer changes firms.
Rule 1.7 - Conflict Of Interest: Current Client. Adopt New Model Rule and Comment.
Rule 1.8 - Conflicts of Interest: Current Clients: Specific Rules. Adopt New Model Rule but modify section (k) to eliminate imputation of Rule 1.8(a) conflicts (based on a lawyer's business transactions with a client). Adopt New Model Rule Comment but modify Paragraph [20] to reflect recommended change to section (k).
Rule 1.9 - Duties to Former Clients. Adopt New Model Rule and Comment.
Rule 1.10 - Imputation of Conflicts of Interest. Adopt New Model Rule but add a new section (e) that authorizes screening under limited circumstances when a lawyer moves from one private firm to another. Adopt New Model Rule Comment.
Rule 1.11 - Special Conflicts of Interest for Former and Current Government Officers and Employees. Adopt New Model Rule but make minor changes to section (b)(2)...
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