Temporal and Substantive Choice of Law Under the Colorado Rules of Professional Conduct
| Publication year | 2010 |
| Pages | 35 |
2010, April, Pg. 35. Temporal and Substantive Choice of Law Under the Colorado Rules of Professional Conduct
April 2010
Vol. 39, No. 4 [Page 35]
Professional Conduct and Legal Ethics articles are sponsored by the CBA Ethics Committee. Articles published here do not necessarily reflect the legal interpretation of the Committee.
Coordinating Editor
Stephen G. Masciocchi, Denver, of Holland and Hart LLP - (303) 295-8000, smasciocchi@hollandhart.com
About the Author
Alec Rothrock, Englewood, is a shareholder in the law firm of Burns, Figa and Will, P.C., and a former Chair of the CBA Ethics Committee-(303) 796-2626, arothrock@bfw -law.com.
When a lawyer's past conduct is scrutinized for ethics violations, a threshold issue may be which version of the Colorado Rules of Professional Conduct applies-the pre-2008 version or the substantially revised version effective January 1, 2008. As cross-border law practice becomes more common, it also may be necessary to determine which jurisdiction's ethics rules apply to the conduct. This article addresses these choice of law considerations.
The issue of which version of the Colorado Rules of Professional Conduct (Rules) applies to a lawyer's past conduct commonly arises in attorney discipline cases and in civil actions charging a lawyer with liability in tort predicated on a violation of duties coextensive with the Rules. In these cases, it also may be necessary to decide which jurisdiction's set of ethics rules is applicable-as cross-border law practice has increased exponentially, so too has the need to determine which set of ethics rules applies to the conduct in question. Like the American Bar Association (ABA) Model Rule on which it is based, new Colorado Rule 8.5 is designed to avoid subjecting a lawyer to more than one set of ethics rules for the same conduct, even if the lawyer is subject to the disciplinary authority of more than one jurisdiction for having engaged in that conduct.
Specifically, this article addresses two questions:
1. Which Rules are applicable to conduct that occurred before the sweeping revision of the Rules effective January 1, 2008?
2. Which set of ethics rules is applicable when a lawyer is admitted to practice in, or practices in, another jurisdiction-for example a state or federal court in another state?
The answer to the first question is that the substantive ethics rules in effect at the time of a lawyer's conduct apply to assess that conduct, but those few procedural rules found in the Rules apply retrospectively in their current form regardless of when the underlying conduct occurred. The answer to the second question is that Colorado now has a specific choice of law rule, which is designed to ensure that even if two or more licensing authorities have jurisdiction to regulate or punish the same lawyer conduct, the conduct will be judged by only one set of ethics rules.
The first question is important because lawyers need certainty about which rules apply to their past conduct, and it is unfair to judge conduct under standards that were not applicable when the conduct occurred. For example, a client's verbal consent to a conflict of interest, obtained prior to January 1, 2008, remains valid even if the matter continues after that date, when the rules changed to require confirmation of client consent in writing. The lawyer need not obtain a new consent compliant with the new rule. On the other hand, there is no unfairness in applying procedural language or rules retrospectively, for example (1) a sentence in the introductory Scope section of the Rules that addresses the admissibility of evidence of certain Rules, and violations of them, in civil cases and, potentially, (2) Colo. RPC 8.5, governing choice of substantive law in a multijurisdictional context.
The second question is important for two reasons offered by a commentator.(fn1) The first reason is that, in some instances, the choice of substantive law determines the outcome. For example, the payment and receipt of referral fees are permissible in some jurisdictions (Illinois) but impermissible in others (Colorado). Subtly, the choice of substantive ethics law may dictate the statute of limitations applicable to charges or claims based on those substantive rules.(fn2) The second reason is that, as a practical matter, the choice of substantive law may influence the decision of which jurisdiction investigating the conduct might prosecute the matter. There may be significant differences between and among jurisdictions in terms of prosecutorial policy, resources, and consequences.
Temporal Choice of Law : Old Rules Versus New Rules
For disciplinary or other purposes, to judge a lawyer's conduct by a rule or version of a rule of professional conduct that was not in effect at the time of the conduct might be tantamount to an ex post facto law in violation of Colo. Const. art. II, § 11. It would be unfair to apply the new rule to the lawyer, unless the new rule was more lenient, in which case the lawyer might try to argue that the new rule simply clarifies what was implicit in the old rule. Be that as it may, a rule that makes a procedural change does not suffer from ex post facto infirmity. It may seem as though the Rules include no procedural rules, but there may well be a few.
Substantive Rules of Professional Conductare Prospective in Nature
The January 1, 2008 revisions to the Rules raised a question about which version of the rules applies to lawyer conduct-the pre-2008 version or the 2008 version. Since the Colorado Supreme Court adopted them in 1993, and continuing to the present time, the Rules have contained the following sentence:
This sentence derived from the ABA Model Rules of Professional Conduct and has not changed since the adoption of those rules in the early 1980sThe Rules presuppose that disciplinary assessment of a lawyer's conduct will be made on the basis of the facts and circumstances as they existed at the time of the conduct in question and in recognition of the fact that a lawyer often has to act upon uncertain or incomplete evidence of the situation.(fn3)
No published decision in Colorado has interpreted this sentence or discussed the broader issue addressed here. However, the Massachusetts Court of Appeals interpreted the identical sentence to mean that "[d]isciplinary rules operate prospectively, not retroactively."(fn4) Without reference to this language, courts in other states have reached the same conclusion in determining the applicable version of a rule of legal ethics.(fn5)
The principle that disciplinary rules operate prospectively and not retroactively is consistent with CRS § 2-4-202, which states that a statute is "presumed to be prospective in its operation."(fn6) CRS § 2-4-202 also reflects a general principle of statutory construction, although the issue is more complex than this article allows.(fn7)
Section § 2-4-202 also is consistent with published disciplinary decisions issued by the Colorado Supreme Court in the aftermath of its 1993 adoption of the Rules to replace the Colorado Code of Professional Responsibility (Code). In those cases, the Court applied the ethics code in effect at the time of the conduct in question, and both codes if the conduct occurred both before and after the change.(fn8) In several civil cases from other jurisdictions, courts have applied ethics rules prospectively.(fn9)
There is ostensibly contrary case authority in Illinois. In Dowd and Dowd, Ltd. v. Gleason,(fn10) the Illinois Supreme Court refused to enforce a noncompetition clause in a law firm partnership agreement, because it reflected the violation of a rule of professional conduct that was not in effect when the parties signed the agreement. The court reasoned that the rule had retroactive effect insofar as the clause violated public policy. In Paul B. Episcope, Ltd. v. Law Offices of Campbell and Di Vincenzo,(fn11) citing Dowd, the Illinois Court of Appeals refused to enforce a fee-division agreement between lawyers in different firms, because the agreement violated an ethics rule that was in effect at time of the civil litigation but not in effect when the lawyers entered into the agreement.(fn12)
It is possible to reconcile the Illinois cases with the principle that rules of professional conduct are to be applied prospectively. The Illinois courts refused to enforce the contracts because they violated a public policy that did not exist or at least had not been expressed at the time of their execution. There was no suggestion in either case that the lawyers had violated any rules of professional conduct. A disciplinary assessment of their conduct should have reached the conclusion that the lawyers engaged in no misconduct. On the other hand, the enforceability of contracts that violate a public policy that did not exist, or had not been expressed, at the time of their execution is a matter of contract law, not the law of legal ethics.
Waivers of conflicts of interest present an interesting application of "temporal" choice of law principles. In New York State Bar Association Committee on Professional Ethics (Ethics Committee) Opinion 829,(fn13) a lawyer informed the Ethics Committee that he had obtained verbal consent to a conflict of interest before New York's ethics rules changed to require the consent to be confirmed in writing. (Colorado made the same change.(fn14)) The lawyer asked the committee whether he needed to obtain a new consent that he would then confirm in writing.
The Ethics Committee concluded that the lawyer did not need to obtain a new consent. The original consent remained valid. Drawing on New York...
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