Abstracts of Letter Opinions - November 2007 - Cba Ethics Committee
| Publication year | 2007 |
| Pages | 17 |
2007, November, Pg. 17. Abstracts of Letter Opinions - November 2007 - CBA Ethics Committee
November 2007
Vol. 36, No. 11 [Page 17]
CBA Ethics Committee
Abstracts of Letter Opinions
The following abstracts of informal CBA Ethics Committee letter opinions are offered as potential sources of guidance to the Bar on matters of ethical concern. Because they abridge the letter opinions and omit facts and circumstances tending to identify the inquiring attorney, the abstracts are not exhaustive, and therefore should serve only as a starting point for, or supplement to, thorough research and analysis. Inquirers are advised, in advance, if the opinion provided to them will be abstracted and published. For a number of reasons, the full letter opinions themselves are not provided to persons other than the original inquirer. The letter opinions and these abstracts are issued for advisory purposes only and are not binding in any way on the Colorado Supreme Court or the Appellate Discipline Commission.
Abstract No. 2007-1
Statement of Facts
An attorney appointed to represent a respondent in protective proceedings is required to file a motion with an attached itemized billing statement with the court when requesting payment of attorney fees from the estate.
Issue
Is it ethical for an attorney to circulate to all of the parties to the proceedings an itemized billing statement for services rendered to the respondent?
Conclusion and Analysis
Yes. Colorado Rule of Professional Conduct (C.R.P.C.) 1.6 governs confidentiality of client information. The application of the rule is problematic here because, although it forbids an attorney from revealing information relating to the representation without the consent of the client, it permits such disclosure when it is impliedly authorized to carry out the representation. CRS § 15-24-417 authorizes an attorney to petition the court for compensation in probate matters. In many instances, particularly protective proceedings, a respondent may be unable to give informed consent to such a disclosure. It is the opinion of the Colorado Bar Association (CBA) Ethics Committee (Committee) that the court order appointing an attorney to represent the respondent in a protective proceeding impliedly authorizes that attorney to disclose client information contained in itemized billing statements to the extent necessary for the court to authorize payment.
The Committee does not express any opinion on legal matters and, therefore, expresses no opinion as to who is an interested party entitled to notice in the probate estate, what disclosure may be permitted when the fees are to be paid by the state, or privilege issues that may be intertwined with the disclosure of itemized billing statements.
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Abstract No. 2007-2
Statement of Facts
You have an estate planning practice that includes the preparation of wills and codicils. You previously have prepared such documents for this client and, in the course of preparing replacement documents, you and your client mutually agreed that other counsel should handle the matter. The client has paid your fees in full. You have provided the client with printed or paper copies (hard copies) of all wills, codicils, and other estate planning documents in your possession. Your client now has requested that you also provide copies of all such documents on accessible disk or transmitted by e-mail (electronic format). The apparent reason for accessibility is to save the client money during the revision process.
Issue
Does C.R.P.C. 1.16(d) require an attorney to provide the client, on request, property and papers in accessible electronic format, if so maintained?
Conclusion
Under the limited facts presented, the Committee concludes that providing wills, codicils, and related estate planning documents in accessible electronic format is a reasonably practical step that you should take to enable the continued protection of your former client's interests within the meaning of C.R.P.C 1.16(d).
Analysis
C.R.P.C. 1.16(d) requires that an attorney take steps to surrender to the client his or her papers and property reasonably practicable to protect the client's interest. CBA Ethics Opinion 104: Surrender of Papers to the Client Upon Termination of the Representation (April 17, 1999) contains an exhaustive discussion of an attorney's obligation to surrender client papers to a client on termination of the representation and what constitutes client papers. It emphasizes the primary ethical obligation of the attorney with respect to surrendering client papers to the client. It does not, however, address client papers maintained in electronic format.
The Committee is of the opinion that the client's request that the client papers be provided in accessible electronic format is a step "reasonably practicable" to enable the continued protection of the client's interests. The rule requires the attorney to define the client's needs liberally and generally favors surrender. The downloading or transmission of accessible electronic format materials is both easy and efficient.
The Committee notes that other ethics committees have reached essentially the same result. See Illinois State Bar Association Advisory Opinion No. 01-01, 2001WL809802 (downloading for attorney leaving a firm with client); State Bar Association of North Dakota Ethics Opinion 01-03 (May 24, 2001) (downloading for attorney leaving a firm with client); Wisconsin Ethics Opinion E-00-03 (although an attorney is not required to surrender papers in both formats, the attorney should provide them in the requested electronic format, if reasonably practical).
As stated in Formal Opinion 104, the Committee believes that the rule does not require the surrender, in any format, of personal attorney work product or documents protected from disclosure based on third party interests.
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Abstract No. 2007-3
Statement of Facts
An attorney is employed as an in-house counsel to a municipal corporation under a written employment agreement that requires the municipality to give a notice of termination a stated time prior to the effective date of the termination, and further provides for a severance payment in an amount equal to that which the attorney would have received had he or she been given the requisite notice.
Issue
Is it ethical for an attorney to provide full-time in-house legal services to a municipality under a written employment agreement that provides that: (1) the attorney will be paid an annual salary payable in monthly or semi-monthly installments; (2) the agreement may be terminated on notice a specified time prior to the effective date of the termination; and (3) the attorney will be paid severance pay measured by the compensation that he or she would have received during the notice period had the notice been timely.
Conclusion
It is the opinion of the Committee that it is not unethical for an attorney to enter into an employment agreement with a municipality containing a severance pay provision such as that described, so long as it does not limit the municipality's ability to terminate the attorney's representation of the municipality contrary to C.R.P.C. 1.16.
Discussion
C.R.P.C. 1.5 (Fees) requires that an attorney's fees must be reasonable. This rule does not appear to apply to the salary, or compensation package, payable to an in-house municipal attorney. The general purpose of a severance pay provision is to assist the employee with the inevitable economic adjustments occasioned by the termination of employment. See generally Moore v. Digital Equipment Corporation, 868 P.2d 1170, 1172 (Colo.App. 1994). Under these facts, the municipality becomes liable for severance pay only on its breach of the employment agreement.
C.R.P.C. 1.16 provides that a client has the right to discharge an attorney at any time, with or without cause, subject to the obligation to pay for services rendered. This right to terminate is a matter of public policy and is implied in any employment contract between an attorney and his or her client. See Olson v. Englewood, 889 P.2d 673, 676 (Colo. 1995). It follows that, although the ability of the municipality to terminate the employment of an in-house attorney may be limited by the inclusion of a severance pay provision in the employment agreement, its ability to limit or terminate any representation of the municipality by that attorney cannot be so limited.
The Committee:
1) expresses no opinion on the capacity of municipalities to enter into such an agreement as that presents a legal question beyond the purview of the Committee;
2) limits the scope of this opinion to the specific provisions described in the inquiry; and
3) expresses no opinion as to the appropriateness of such provisions in employment contracts involving other governmental attorneys or private in-house or private general counsel.
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Abstract No. 2007-4
Statement of Facts
A consulting company operating online provides business plans and other services to business owners and, in conjunction with that activity, refers clients to attorneys and other professionals. In exchange for an annual fee, an attorney obtains the exclusive right to referrals by the consulting company to its clients in the attorney's zip code area and, for an additional fee, other zip codes. When a client of the consulting company types in a zip code, he or she is directed to a website containing the attorney's picture, biography, and contact information, with links to the attorney's separate website, if any.
Issue
Does the described relationship between the consulting company and the attorney comply with C.R.P.C. 1.5(e) and C.R.P.C. 7.2(c)?
Conclusion and Analysis
No. C.R.P.C. 1.5(e) succinctly states...
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