Professional Conduct and Legal Ethics, 1116 COBJ, Vol. 45 No. 11
| Author | Alec Rothrock, J. |
Alec Rothrock, J.
Colorado Consider ABA’s Ethics 20/20 Project and Amends Rules of Professional Conduct
Colorado’s rules of professional conduct were recently amended This article highlights critical rule changes regarding technological advances, client confidentiality, the outsourcing of legal services, and interactions between lawyers and prospective clients. The Colorado Supreme Court amended the Colorado Rules of Professional Conduct (Colo. RPC or Rules) effective April 6, 2016. These changes are modest compared to the substantial revisions adopted in 2008, but many of them are significant.
The majority of the 2016 changes derive from corresponding changes made in 2012 and 2013 to the American Bar Association’s Model Rules of Professional Conduct (ABA Model Rules) as part of its “Ethics 20/20” project. The Colorado Supreme Court’s Standing Committee on the Rules of Professional Conduct (Standing Committee) studied the ABA changes over the course of several months and then submitted a comprehensive report to the Colorado Supreme Court recommending the adoption, rejection, or modification of the ABA changes.1 This article summarizes the most significant of these changes, which comprise new rules and comments addressing:
1) technological advances, particularly as they affect lawyer competence, communication, and advertising;
2) client confidentiality, specifically new rules that permit lawyers to disclose certain information to check for conflicts of interest and set a standard of ethical and disciplinary responsibility for the inadvertent disclosure of, or access to, protected client information;
3) outsourcing legal services in connection with coordinating efforts with non-law firm lawyers hired to handle a matter or assist in handling it, and supervising nonlawyers outside the firm to whom the client or the lawyer has delegated legal support services; and
4) prospective clients, particularly regarding conflicts of interest and confidentiality.
Technology
The focus on technology begins with definitional changes. Other major amendments in this area affect competence, communication, and advertising.
Definitions
In the definition of a “writing,” the term “electronic communications” has replaced the narrower term “e-mail.”2 A Comment elaborates on the definition of “screened” and now expressly includes “information in electronic form” among the types of information held by a law firm that a lawyer should be denied access to as part of an ethical screen3
The Colorado Supreme Court adopted its own definition of “document,” which includes “e-mail or other electronic modes of communication subject to being read or put into readable form.”4 However, a Comment interpreting Colo. RPC 4.4(b), which addresses a lawyer’s obligations upon receipt of inadvertently disclosed documents, gives a slightly different definition of “document” for purposes of that rule only. “Document” in Rule 4.4(b) includes not only paper and electronically stored information such as email, but also “embedded data,” commonly known as metadata.5 The Comment states that Rule 4.4(b) requires the receiving lawyer to notify the sender of the receipt of metadata only if the receiving lawyer “knows or reasonably should know that the metadata was inadvertently sent to the receiving lawyer.”6
The ABA made, and the Court adopted, semantic changes to the comments following the rules governing advertising and solicitation Most of these changes modernize and broaden the terminology to adapt these comments to new and future technology.7 The Court also adopted a new ABA Comment that defines “solicitation” for purposes of Colorado’s solicitation rule, Colo. RPC 7.3, which clarifies that a solicitation is a communication that is “directed to a specific person.”[8] A communication is not a solicitation if it is directed to the general public, responsive to a request for information, or automatically generated in response to Internet searches.9
Competence
The Rules have long recognized that the duty to provide competent representation includes keeping abreast of changes in the law and law practice through study and education. The Comment that discusses this facet of lawyer competence now also refers to changes in “communications and other relevant technologies.”10
Some lawyers have voiced concerns that the addition of this phrase requires lawyers to master complex technologies that keep changing that they have no occasion to use, or that their staff can handle for them Although the true test of this new language will be its interpretation by the Office of Attorney Regulation Counsel and the Colorado courts, it seems unlikely that a lawyer will be subject to discipline for a failure to understand a certain technology in the absence of client harm Lawyers may delegate technological matters to their staff as long as they confirm, through the exercise of reasonable efforts, that the staff understands the relevant technology and their immediate responsibility for it. “Delegation of work to nonlawyers is essential to the efficient operation of any law office. But, delegation of duties cannot be tantamount to the relinquishment of responsibility by the lawyer.”11 Lawyers should be able to choose the method of communication appropriate to the circumstance but must use reasonable efforts to ensure the adequacy of a particular communication method.
The new Comment language may also affect the standard of care in legal malpractice cases. Lawyers who serve as expert witnesses in legal malpractice cases often refer to the Rules as evidence of the standard of conduct in a given area of practice. Although the Rules “are not designed to be a basis for civil liability,” because they “establish standards of conduct by lawyers, in appropriate cases, a lawyer’s violation of a Rule may be evidence of breach of the applicable standard of conduct.”12 While lawyers are generally responsible for technological mishaps that result in, for example, a missed statute of limitations, it should come as no surprise if the new Comment language has the effect of expanding the standard of competence.
Communication
Dovetailing with the addition of technological proficiency to the ethical standard of competence is an additional sentence in a Comment to Rule 1.4 requiring adequate communication with clients. Before the 2016 changes, a sentence in the Comment expressed the expectation that lawyers promptly” return telephone calls. The sentence now extends that expectation to client communications of any kind.13
Advertising
New language in a Comment to the advertising rule, Colo. RPC 7.2, introduces the concept of “lead generation” to the Rules. Lead generation is not defined in Rule 7.2, but one dictionary defines it as the “action or process of identifying and cultivating potential customers for a business’s products or services.”[14]
Lawyers typically generate client leads through the Internet. The new Comment language states that a lawyer “may pay others for generating client leads, such as Internet-based client leads, as long as the lead generator does not recommend the lawyer. . . .”15 A communication contains a “recommendation” if it “endorses or vouches for a lawyer’s credentials, abilities, competence, character, or other professional qualities.”16 Lawyers who engage lead generators are cautioned to not violate other rules, specifically Colo. RPC 1.5(e) (division of fees), Colo. RPC 5.4 (professional independence of the lawyer), and Colo. RPC 7.1 (communications concerning a lawyer’s services).17
Confidentiality
Amendments to the confidentiality rules clarify the use and protection of confidential information
Conflicts Checks
Before the 2016 changes, Colorado was ahead of its time in expressly allowing the disclosure of certain confidential client information to permit lawyers to check for conflicts of interest when moving from one firm to another. A Comment to the confidentiality rule, Colo. RPC 1.6, treated the disclosure of this information as impliedly authorized for the purpose of carrying out the representation. [18]The ABA Model Rules were silent on this concept.
The ABA subsequently addressed this issue by adding an exception to Model Rule 1.6 to permit lawyers to reveal limited confidential client...
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