ANNOTATIONSSource:
(a), (c), and comment amended and adopted June 17, 1999, effective July 1, 1999.
COMMENT
Scope and Objectives of Representation
The scope or objectives, or both, of the lawyer's
representation of the client may be limited if the client
consents after consultation with the lawyer.
In litigation matters on behalf of a pro se party,
limitation of the scope or objectives of the representation is
subject to C.R.C.P. 11(b) or 311 (b) and C.R.C.P. 121, section 1-1, and,
therefore, involves not only the client and the lawyer but
also the court. When a lawyer is providing limited
representation to a pro se party as permitted by C.R.C.P. 11(b) or
311(b), the consultation with the client shall include an
explanation of the risks and benefits of such limited.
representation. A lawyer must provide meaningful legal
advice consistent with the limited scope of the lawyer's
representation, but a lawyer's advice may be based upon the
pro se party's representation of the facts and the scope of
representaton agreed upon by the lawyer and the pro se
party.
A lawyer remains liable for the consequences of any
negligent legal advice. Nothing in this rule is intended to
expand or restrict, in any manner, the laws governing civil
liability of lawyers.
Both lawyer and client have authority and responsibility in the
objectives and means of representation. The client has the ultimate
authority to determine the purposes to be served by the legal
representation, within the limits imposed by the law and the lawyer's
professional obligations. Within those limits, a client also has a
right to consult with the lawyer about the means to be used in pursuing
those objectives. At the same time, a lawyer is not required to pursue
objectives or employ means simply because a client may wish that the
lawyer do so. A clear distinction between objectives and means
sometimes cannot be drawn, and in many cases the client-lawyer
relationship partakes of a joint undertaking. In questions of means,
the lawyer should assume responsibility for technical and legal tactical
issues, but should defer to the client regarding such questions as the
expense to be incurred and concern for third persons who might be
adversely affected. Law defining the lawyer's scope of authority in
litigation varies among jurisdictions.
In a case in which the client appears to be suffering mental
disability, the lawyer's duty to abide by the client's decisions is to
be guided by reference to Rule 1.14.
Independence from Client's Views or Activities
Legal representation should not be denied to people who are unable
to afford legal services, or whose cause is controversial or the subject
of popular disapproval. By the same token, representing a client does
not constitute approval of the client's views or activities.
Services Limited in Objectives or Means
The objectives or scope of services provided by a lawyer may be
limited by agreement with the client or by the terms under which the
lawyer's services are made available to the client. For example, a
retainer may be for a specifically defined purpose. Representation
provided through a legal aid agency may be subject to limitations on the
types of cases the agency handles. When a lawyer has been retained by
an insurer to represent an insured, the representation may be limited to
matters related to the insurance coverage. The terms upon which
representation is undertaken may exclude specific objectives or means.
Such limitations may exclude objectives or means that the lawyer regards
as repugnant or imprudent.
An agreement concerning the scope of representation must accord
with the Rules of Professional Conduct and other law. Thus, the client
may not be asked to agree to representation so limited in scope as to
violate Rule 1.1, or to surrender the right to terminate the lawyer's
services
or the right to settle litigation that the lawyer might wish to continue.
Criminal, Fraudulent and Prohibited Transactions
A lawyer is required to give an honest opinion about the actual
consequences that appear likely to result from a client's conduct. The
fact that a client uses advice in a course of action that is criminal or
fraudulent does not, of itself, make a lawyer a party to the course of
action. However, a lawyer may not knowingly assist a client in criminal
or fraudulent conduct. There is a critical distinction between
presenting an analysis of legal aspects of questionable conduct and
recommending the means by which a crime or fraud might be committed with
impunity.
When the client's course of action has already begun and is
continuing, the lawyer's responsibility is especially delicate. The
lawyer is not permitted to reveal the client's wrongdoing, except where
permitted by Rule 1.6. However, the lawyer is required to avoid
furthering the purpose, for example, by suggesting how it might be
concealed. A lawyer may not continue assisting a client in conduct that
the lawyer originally supposes is legally proper but then discovers is
criminal or fraudulent. Withdrawal from the representation, therefore,
may be required.
Where the client is a fiduciary, the lawyer may be charged with
special obligations in dealings with a beneficiary.
Paragraph (d) applies whether or not the defrauded party is a
party to the transaction. Hence, a lawyer should not participate in a
sham transaction; for example, a transaction to effectuate the criminal
or fraudulent escape of tax liability. Paragraph (d) does not preclude
undertaking a criminal defense incident to a general retainer for legal
services to a lawful enterprise. The last clause of paragraph (d)
recognizes that determining the validity or interpretation of a statute
or regulation may require a course of action involving disobedience of
the statute or regulation or of the interpretation placed upon it by
governmental authorities.
COMMITTEE COMMENT
Rule 1.2 has no direct counterpart in the Disciplinary Rules of
the Code of Professional Responsibility. The provisions of several
Disciplinary Rules and Ethical Considerations are included in the Rule.
ANNOTATION
Law reviews. For formal opinion of the Colorado Bar Association on
Ethical Duties of Attorney Selected by Insurer to Represent Its Insured, see
22 Colo. Law. 497 (1993).
For article, "Discrete Task Representation a/k/a Unbundled Legal Services",
see 29 Colo. Law. 5 (January 2000).
For article, "Limited Representation in Criminal Defense Cases",
see 29 Colo. Law. 77 (October 2000).
Annotator's note.
Since Rule 1.2 is similar to
DR 7-101, DR 7-102, DR 2-110, and DR 9-101 as they
existed prior to the 1992 repeal and reenactment of the Code of
Professional Responsibility, relevant cases construing
those provisions have been included in the annotations to this rule.
Even though section (c) of this rule allows unbundling of legal services, an
attorney remains obligated to comply with C.R.C.P. 11(b). In re Merriam, 250
Bankr. 724 (D. Colo. 2000).
Having a litigant appear to be pro se when in truth an attorney is
authoring pleadings and necessarily guiding the course of the litigation with
an unseen hand is disingenuous and far below the level of candor that must be
met
by members of the bar. Such conduct is contrary to paragraph (d) of this
rule.
Johnson v. Board of County Comm'rs of Fremont, 868 F. Supp. 1226 (D. Colo.
1994).
Any provision in an agreement to provide legal services that would
deprive a client of the right to control settlement is unenforceable as
against
public policy, including a provision that purports to prohibit the client
from unreasonably refusing to settle. A client's right to reject settlement
is absolute and unqualified; parties to litigation have the right to control
their
own cases. Jones v. Feiger, Collison & Killmer, 903 P.2d 27 (Colo. App.
1994), rev'd on other grounds, 926 P.2d 1244 (Colo. 1996).
Aiding client to violate custody order sufficient to justify
disbarment.
People v. Chappell, 927 P.2d 829 (Colo. 1996).
Suspension for three years, the longest period available, was
appropriate in case where violation of this rule and others would otherwise
have justified disbarment but mitigating factors included personal and
emotional problems, interim rehabilitation, and remorse. People v.
McCaffrey, 925 P.2d 269 (Colo. 1996).
Suspension for one year and one day appropriate when attorney neglected
to file response to motion for summary judgment and to return client files
upon
request. People v. Honaker, 847 P.2d 640 (Colo. 1993).
Public censure appropriate where harm suffered by attorney's client was
speculative, attorney retracted his misrepresentations and admitted to his
client before the institution of disciplinary proceedings that he had done
nothing on the client's appeal, attorney had no prior discipline, he made full
and free disclosure of his misconduct to the grievance committee, and he
expressed remorse for his misconduct. People v. Nelson, 848 P.2d 351 (Colo.
1993).
If prosecution witness advises the prosecutor that he or she knows or
recognizes one of the jurors, the prosecutor has an affirmative duty
immediately to notify the court and opposing counsel of the witness'
statement. People v. Drake, 841 P.2d 364 (Colo. App. 1992).
When a lawyer accepts fees from clients and then abandons those clients
while keeping their money and causing serious harm, disbarment is
appropriate. People v. Steinman, 930 P.2d 596 (Colo. 1997).
Conduct violating this rule in conjunction with other disciplinary
rules is
sufficient to justify disbarment. People v. Steinman, 930 P.2d 596
(Colo. 1997); In re Bilderback, 971 P.2d 1061 (Colo. 1999).
Conduct violating this rule in conjunction with other disciplinary
rules is
sufficient to justify disbarment. People v. Sousa, 943 P.2d 448 (Colo.
1997).
Cases Decided Under Former DR 2-110.
Law reviews.
For article, "Coping with the Paper Avalanche: A Survey on the Disposition
of Client Files", see 16 Colo. Law. 1787 (1987).
Suspension for one year and one day warranted for attorney who
"represented" client for a period of 19 months without that person's
knowledge or consent, even asserting a counterclaim on his behalf without
talking to him; who did not communicate with him in any manner for an
extended period of time and then did not withdraw within a reasonable time
after being unable to contact him; and who failed to answer discovery
requests, resulting in the entries of default and then a default judgment
against him. People v. Silvola, 915 P.2d 1281 (Colo. 1996).
Attorney who undertakes to conduct action impliedly agrees that he will
pursue it to some conclusion; and he is not free to abandon it without
reasonable cause. Sobol v. District Court, 619 P.2d 765 (Colo. 1980);
Anderson, Calder & Lembke v. District Court, 629 P.2d 603 (Colo. 1981).
Even where cause may exist, attorney's withdrawal must be undertaken
in proper manner, duly protective of his client's rights and liabilities.
Sobol v. District Court, 619 P.2d 765 (Colo. 1980).
Attorney's withdrawal from employment was improper where attorney
gave clients insufficient notice of her intention to withdraw, failed to
return the file of one client, and took no steps to avoid foreseeable injury to
the
clients' interests. People v. Felker, 770 P.2d 402 (Colo. 1989).
Trial dates accepted shall be honored before withdrawal from employment.
When public defender or a busy defense lawyer finds that his representation
of one client is inimical to his representation of another client and he
must make an election as to the client he will represent, he has a heavy
duty to the court to see that he honors dates that he has agreed to for
the trial of a case. Watson v. District Court, 199 Colo. 76, 604 P.2d 1165
(1980).
Attorney's withdrawal is within trial court's discretion.
The question of whether an attorney should be permitted to withdraw his
general appearance on behalf of a litigant in a civil case is, under ordinary
circumstances, within the discretion of the trial court; and its decision
will not be reversed unless this discretion has been demonstrably abused.
Sobol v. District Court, 619 P.2d 765 (Colo. 1980).
Motions for withdrawal of counsel are addressed to the discretion of the
court and will not be reversed unless clear error or abuse is shown. Anderson,
Calder & Lembke v. District Court, 629 P.2d 603 (Colo. 1981).
A decision as to whether counsel should be permitted to withdraw must lie
within the sound discretion of the trial judge. As long as the trial court
has a reasonable basis for believing that the lawyer-client relation has
not deteriorated to the point where counsel is unable to give effective
aid in the fair presentation of a defense, the court is justified in refusing
to appoint new counsel.
People v. Schultheis, 638 P.2d 8 (Colo. 1981).
The question of whether a lawyer may withdraw during course of trial due
to the client's conduct is within the trial court's discretion and court
must balance need for orderly administration of justice
with facts underlying request for withdrawal. People v. Rubanowitz, 688
P.2d 231 (Colo. 1984).
The trial court's decision will not be disturbed on review absent
abuse. The decision of
the trial court to deny a motion to withdraw will not be disturbed on review
absent a clear abuse of discretion.
People v. Schultheis, 638 P.2d 8 (Colo. 1981).
Disagreement concerning counsel's refusal to call witnesses is insufficient
grounds. A disagreement between defense counsel and the accused concerning
counsel's refusal to call certain witnesses is not sufficient to require
the trial judge to grant the motion to withdraw and replace defense counsel.
People v. Schultheis, 638 P.2d 8 (Colo. 1981).
Filing of a grievance because of disagreement as to trial tactics
is insufficient grounds. Mere filing of grievance concerning counsel's
refusal to file certain motions and refusal to file a civil action is
not sufficient to require trial judge to grant the motion to withdraw
and replace defense counsel.
People v. Martinez, 722 P.2d 445 (Colo. App. 1986).
Counsel should request permission to withdraw where client insists on
presenting perjured
testimony. When a serious disagreement arises between the defense counsel
and the accused, and counsel is unable to dissuade his client from insisting
that fabricated testimony be presented by a witness, counsel should request
permission to withdraw from the case in accordance with the procedures set
forth in this opinion. If the motion to withdraw is denied, however, he
must continue to serve as defense counsel.
People v. Schultheis, 638 P.2d 8 (Colo. 1981).
When confronted with a client who insists upon presenting perjured
testimony
as to an alibi, counsel may only state, in the motion to withdraw, that
he has an irreconcilable conflict with his client.
People v. Schultheis, 638 P.2d 8 (Colo. 1981).
Failure and refusal to refund unearned portions of fees collected from
two clients constituted violations of C.R.C.P. 241(B), DR 9-102,
and this rule. People v. Gellenthien, 621 P.2d 328 (Colo. 1981).
Failure to withdraw for over a year after being discharged by client,
accompanied by protracted failure to return client's file, justifies
suspension. People v. Hodge, 752 P.2d 533 (Colo. 1988).
Conduct violating this rule in conjunction with other disciplinary
rules sufficient to justify public censure.
People v. Vsetecka, 893 P.2d 1309 (Colo. 1995).
Failing to return the file of a client while at the same time
neglecting to make further filings in such client's case during a period of
suspension for similar acts of misconduct warrants further suspension from
the practice of law. People v. Hodge, 782 P.2d 25 (Colo. 1989).
Suspended attorney must demonstrate rehabilitation.
The actions of a suspended attorney who took part in a complex real estate
transaction and engaged in the practice of law by representing, counseling,
advising, and assisting a former client warrant suspension until he
demonstrates
by clear and convincing evidence that (1) he has been rehabilitated; (2)
he has complied with and will continue to comply with all applicable
disciplinary orders and rules; and (3) he is competent and fit to practice
law.
People v. Belfor, 200 Colo. 44, 611 P.2d 979 (1980).
Conduct violating this rule in conjunction with other
disciplinary rules is sufficient to justify suspension.
People v. Moya, 793 P.2d 1154 (Colo. 1990);
People v. Creasey, 793 P.2d 1159 (Colo. 1990);
People v. Wilson, 814 P.2d 791 (Colo. 1991);
People v. Whitaker, 814 P.2d 812 (Colo. 1991);
People v. Heilbrunn, 814 P.2d 819 (Colo. 1991);
People v. Anderson, 817 P.2d 1035 (Colo. 1991);
People v. Hyland, 830 P.2d 1000 (Colo. 1992);
People v. Raubolt, 831 P.2d 462 (Colo. 1992);
People v. Southern, 832 P.2d 946 (Colo. 1992);
People v. Regan, 871 P.2d 1184 (Colo. 1994);
People v. Cole, 880 P.2d 158 (Colo. 1994).
Conduct violating this rule sufficient to justify suspension.
People v. Geller, 753 P.2d 235 (Colo. 1988).
Facts sufficient to justify disbarment of attorney for failure to comply
with registration requirements of C.R.C.P. 227, misappropriation of
funds, and improper withdrawal from employment. People v. Scudder,
197 Colo. 99, 590 P.2d 493 (1979).
Conduct violating this rule in conjunction with other disciplinary rules
is sufficient to justify disbarment.
People v. Southern, 832 P.2d 946 (Colo. 1992);
People v. McGrath, 833 P.2d 731 (Colo. 1992);
People v. Fritsche, 897 P.2d 805 (Colo. 1995).
Conduct violating this rule sufficient to justify disbarment.
People v. Dwyer, 652 P.2d 1074 (Colo. 1982);
People v. Kengle, 772 P.2d 605 (Colo. 1989);
People v. Franks, 791 P.2d 1 (Colo. 1990);
People v. Vermillion, 814 P.2d 795 (Colo. 1991);
People v. Mullison, 829 P.2d 382 (Colo. 1992);
People v. McGrath, 833 P.2d 731 (Colo. 1992).
Applied in
People ex rel. MacFarlane v. Harthun, 195 Colo. 38, 581 P.2d 716 (1978);
People v. Pacheco, 198 Colo. 455, 608 P.2d 333 (1979);
People v. Pacheco, 199 Colo. 108, 608 P.2d 334 (1979);
People v. Johnson, 199 Colo. 248, 612 P.2d 1097 (1980);
People v. Lanza, 200 Colo. 241, 613 P.2d 337 (1980);
People v. Meldahl, 200 Colo. 332, 615 P.2d 29 (1980);
People v. Archuleta, 638 P.2d 255 (Colo. 1981).
Cases Decided Under Former DR 7-101.
Law reviews. For article, "The Ethical Aspects of Compromise,
Settlement and Arbitration", see 25 Rocky Mt. L. Rev. 454 (1953).
For article, "Incriminating Evidence: What to Do With a Hot Potato", see
11 Colo. Law. 880 (1982).
For article, "Third-Party Malpractice Claims against Real Estate Lawyers",
see 13 Colo. Law. 996 (1984).
For article, "The Role of Parents' Counsel in Dependency and Neglect
Proceedings -- Part I", see 14 Colo. Law. 568 (1985).
For article, "The Ethical Duty to Consider Alternatives to Litigation",
see 19 Colo. Law. 249 (1990).
Lawyers are required by the obligations of their office to act
with diligence in the affairs of their clients and in judicial
proceedings. People v. Heyer, 176 Colo. 188, 489 P.2d 1042 (1971).
Failure to take any action on behalf of his client
after he was retained and entrusted
with work and after making representations to his client which were false,
an attorney violates the code of professional responsibility and
C.R.C.P. 241.6. People v. Southern, 638 P.2d 787 (Colo. 1982).
Trial court may explore adequacy of trial counsel's representations
regarding
grounds for withdrawal, but in the course of this inquiry, the court may
not compel the attorney to disclose any confidential communications.
People v. Schultheis, 44 Colo. App. 452, 618 P.2d 710 (1980),
rev'd on other grounds, 638 P.2d 8 (Colo. 1981).
Attorney may not breach his duty of maintaining his client's confidences
even when he knows his client has previously perjured himself. People v.
Schultheis, 44 Colo. App. 452, 618 P.2d 710 (1980),
rev'd on other grounds, 638 P.2d 8 (Colo. 1981).
Attorney shall not use testimony that he knows is perjured.
People v. Schultheis, 44 Colo. App. 452, 618 P.2d 710 (1980), rev'd on other
grounds, 638 P.2d 8 (Colo. 1981).
Defense counsel may waive right to confront witnesses.
The right to confront witnesses is a fundamental right and waiver
of such a right is not to be lightly found, but this decision is
properly the responsibility of defense counsel, and therefore,
the decision of defense counsel to allow the prosecution to use
depositions of witnesses in court is an effective waiver. Morse
v. People, 180 Colo. 49, 501 P.2d 1328 (1972).
Matters of trial conduct and strategy are the responsibility
of defense counsel. Morse v. People, 180 Colo. 49, 501 P.2d 1328 (1972).
Defendant cannot complain when it falls short of accomplishing
an acquittal. It is not error to deny a motion for a new trial based
on incompetence of trial counsel where the incompetence claimed
arises out of defense counsel's failure to call certain witnesses
that the defendant suggested, because defense counsel is responsible
for trial strategy, and the defendant will not be heard to complain
when trial strategy falls short of accomplishing an acquittal.
People v. Moreno, 181 Colo. 106, 507 P.2d 857 (1973).
If every decision in a contested trial had to be made
by the accused, he would be denied effective assistance and the
judgment of his trial counsel; the defendant's attorney is the expert
at trial, not the defendant. Morse v. People, 180 Colo. 49, 501 P.2d
1328 (1972).
Continued and chronic neglect over a period of two years must be
considered willful and supports finding of intentional
prejudice or damage to clients. People v. Barber, 799 P.2d 936 (Colo. 1990).
Trial court did not abuse its discretion by imposing sanctions
on attorney who, at direction of clients, failed to advise opposing
party of clients' bankruptcy and automatic stay in advance of trial.
Under such circumstances the attorney was faced with an
irreconcilable conflict between his duty to his clients and his
professional obligations to opposing counsel and would have been
justified in requesting permission to withdraw. Parker v. Davis,
888 P.2d 324 (Colo. App. 1994).
Inappropriate personal relationship with a client may prejudice or
damage client under this rule. People v. Gibbons, 685 P.2d 168 (Colo.
1984).
Where an attorney requests, on the day of trial, dismissal
of federal court proceedings because of lack of jurisdictional amount
while representing plaintiff, fails to appear in court when scheduled,
shows gross indifference and disregard toward the court, the jurors,
and opposing counsel, and fails to keep appointments with the grievance
committee assigned to investigate charges against him, a public
reprimand for dereliction of duty is called for. People v. Heyer,
176 Colo. 188, 489 P.2d 1042 (1971).
Public censure was appropriate where attorney's failure to appear at
three hearings and to timely return a stipulation violated DR 1-102(A)(5)
and, in aggravation, there was a pattern of misconduct. People v. Cabral,
888 P.2d 245 (Colo. 1995).
Conduct of attorney warranted public censure under paragraph (A)(1).
People v. Stayton, 798 P.2d 903 (Colo. 1990);
People v. Smith, 819 P.2d 497 (Colo. 1991).
Conduct of attorney warranted public reprimand under
paragraph (A)(2). People v. Atencio, 177 Colo. 439, 494 P.2d
837 (1972).
Conduct violating this rule in conjunction with other disciplinary rules
is sufficient to justify public censure.
People v. Ashley, 796 P.2d 962 (Colo. 1990);
People v. Fitzgibbons, 909 P.2d 1098 (Colo. 1996).
Conduct violating this rule sufficient to justify public censure.
People v. Mayer, 716 P.2d 1094 (Colo. 1986);
People v. Wilson, 745 P.2d 248 (Colo. 1987);
People v. Wyman, 769 P.2d 1076 (Colo. 1989);
People v. Baird, 772 P.2d 110 (Colo. 1989);
People v. Fieman, 788 P.2d 830 (Colo. 1990);
People v. Good, 790 P.2d 331 (Colo. 1990).
Where an attorney misrepresents to a client that
he has filed a case, fails for two years to take action on behalf
of another client, and, knowing that a hearing had been set on
charges against him, deliberately leaves the jurisdiction of the
court without making any arrangements with the grievance committee
and without arranging for representation, his conduct warrants
suspension from the bar. People v. Kane, 177 Colo. 378, 494 P.2d 96 (1972).
Suspension is fitting sanction when lawyer knowingly fails to perform
services for a client and thereby causes injury
to such client. People v. Masson, 782 P.2d 335 (Colo. 1989).
Failing to resolve an inability to proceed on behalf of a client,
neglecting to respond to communications from the grievance committee,
failing to fulfill commitments made to the investigator for the
disciplinary counsel, and misrepresenting to such investigator the status
of the case under investigation is conduct warranting suspension. People
v. Chappell, 783 P.2d 838 (Colo. 1989).
Suspension of lawyer for three years which is the longest possible
period for suspension, is appropriate where there was extensive pattern of
client neglect and intentional deception in client matters over a period of
years. Anything less would be too lenient. People v. Hellewell, 811 P.2d
386 (Colo. 1991).
Failure to communicate with clients, court, and opposing counsel,
misrepresentation of the status of the proceedings to the client, and failure
to investigate clients' case justifies three-year suspension. People v.
Wilson,
814 P.2d 791 (Colo. 1991).
Knowing failure to prosecute client's claim or to obtain client's
informed consent to abandon the claim and neglecting to pursue settlement
negotiations damaged client and constitutes intentional failure to carry out
contract of employment sufficient to justify suspension. People v. Honaker,
814 P.2d 785 (Colo. 1991).
Conduct violating this rule in conjunction with other
disciplinary rules is sufficient to warrant suspension. People v.
Creasey, 793 P.2d 1159 (Colo. 1990);
People v. Schmad, 793 P.2d 1162 (Colo. 1990);
People v. Wilbur, 796 P.2d 976 (Colo. 1990);
People v. Baptie, 796 P.2d 978 (Colo. 1990);
People v. Taylor, 799 P.2d 930 (Colo. 1990);
People v. Garrett, 802 P.2d 1082 (Colo. 1990);
People v. Rhodes, 803 P.2d 514 (Colo. 1991);
People v. Flores, 804 P.2d 192 (Colo. 1991);
People v. Dunsmoor, 807 P.2d 561 (Colo. 1991);
People v. Hall, 810 P.2d 1069 (Colo. 1991);
People v. Koeberle, 810 P.2d 1072 (Colo. 1991);
People v. Dash, 811 P.2d 36 (Colo. 1991);
People v. Creasey, 811 P.2d 40 (Colo. 1991);
People v. Whitaker, 814 P.2d 812 (Colo. 1991);
People v. Hansen, 814 P.2d 816 (Colo. 1991);
People v. Hyland, 830 P.2d 1000 (Colo. 1992);
People v. Raubolt, 831 P.2d 462 (Colo. 1992);
People v. Regan, 831 P.2d 893 (Colo. 1992);
People v. Denton, 839 P.2d 6 (Colo. 1992);
People v. Hindorff, 860 P.2d 526 (Colo. 1993);
People v. Cole, 880 P.2d 158 (Colo. 1994);
People v. Smith, 880 P.2d 763 (Colo. 1994);
People v. Schaefer, 938 P.2d 147 (Colo. 1997).
Conduct violating this rule sufficient to justify suspension.
People v. Yaklich, 646 P.2d 938 (Colo. 1982);
People v. Brackett, 667 P.2d 1357 (Colo. 1983);
People v. Pilgrim, 698 P.2d 1322 (Colo. 1985);
People v. Convery, 704 P.2d 296 (Colo. 1985);
People v. Foster, 716 P.2d 1069 (Colo. 1986);
People v. Coca, 716 P.2d 1073 (Colo. 1986);
People v. Barnett, 716 P.2d 1076 (Colo. 1986);
People v. Fleming, 716 P.2d 1090 (Colo. 1986);
People v. Larson, 716 P.2d 1093 (Colo. 1986);
People v. Richards, 748 P.2d 341 (Colo. 1987);
People v. Convery, 758 P.2d 1338 (Colo. 1988);
People v. Griffin, 764 P.2d 1166 (Colo. 1988);
People v. Goens, 770 P.2d 1218 (Colo. 1989);
People v. Flores, 772 P.2d 610 (Colo. 1989);
People v. Pooley, 774 P.2d 239 (Colo. 1989);
People v. Fahrney, 782 P.2d 743 (Colo. 1989);
People v. Gregory, 788 P.2d 823 (Colo. 1990);
People v. Bergmann, 790 P.2d 840 (Colo. 1990).
Failure to file bankruptcy petition for eight months justifies disbarment.
When a lawyer, after being paid for his services, neglects to file a bankruptcy
petition for his client for a period of approximately eight months, during
which time the client is sued and his wages attached on several occasions,
the lawyer's gross neglect and failure to carry out a contract of employment
justify disbarment. People v. McMichael, 199 Colo. 433, 609 P.2d 633 (1980).
Converting estate or trust funds for one's personal use, overcharging
for services rendered, neglecting to return inquiries relating to client
matters, failing to make candid disclosures to grievance committee, and
attempting to conceal wrongdoing during disciplinary proceedings warrants
the severe sanction of disbarment. People v. Gerdes, 782 P.2d 2 (Colo. 1989).
Disbarment was the proper remedy where attorney's conduct
demonstrated (a) neglect of legal matters entrusted to him; (b)
misrepresentation to the client and the grievance committee; and (c) a
pattern of neglect followed
by the respondent that had the potential of causing serious injury to his
clients, and the attorney was afforded multiple opportunities including two
suspensions and court ordered rehabilitation. People v. Susman, 787 P.2d
1119 (Colo. 1990).
Converting trust funds to one's own use in the amount of $13,100 and
refusing to make payments on a promissory note taken as restitution was conduct
intentionally prejudicial to the client sufficient to justify disbarment.
People v. Whitcomb, 819 P.2d 493 (Colo. 1991).
Converting trust funds, along with other misconduct, sufficient to
justify
disbarment. Where attorney withdraws $62,550 from trust without
beneficiaries' knowledge or permission, fails to repay a $5,000 loan from the
trustee, prepares fictional quarterly trust reports, disburses principal to
beneficiaries in lieu of interest and lies regarding the amount of principal
remaining in the trust, there is conduct sufficiently prejudicial to the
client to justify disbarment. People v. Tanquary, 831 P.2d 889 (Colo. 1992).
When attorney converted client's funds, named himself trustee,
misrepresented to banks that the funds were his own, engaged in self-dealing,
and maintained custody of the client's investment accounts, disbarment was
warranted. There were no mitigating factors. People v. Warner, 8873 P.2d
724 (Colo. 1994).
Misrepresenting the status of a dissolution of marriage action with
knowledge of impending remarriage and then forging the purported decree of
dissolution is conduct involving moral turpitude deserving of disbarment.
People v. Belina, 782 P.2d 26 (Colo. 1989).
Conduct which causes a client serious or potentially serious injury
and demonstrates a complete lack of concern for a client's interests and
welfare warrants disbarment. People v. Lyons, 762 P.2d 143 (Colo. 1988).
Where an attorney demonstrates an extreme indifference to the welfare of
his clients and the status of their cases and an extreme insensitivity to
his professional duties in the face of adverse judgments due to neglect,
client complaints, and repeated disciplinary proceedings, disbarment
is the appropriate sanction. People v. Wyman, 782 P.2d 339 (Colo. 1989).
Facts sufficient to justify disbarment of attorney for failure to comply
with registration requirements of C.R.C.P. 227, misappropriation of
funds, and improper withdrawal from employment. People v. Scudder,
197 Colo. 99, 590 P.2d 493 (1979).
Failure to respond to discovery and motions, failure to attend case
management hearing, and failure to inform client of progress of a civil case
is grounds for disbarment. People v. Hebenstreit, 823 P.2d 125 (Colo.
1992).
Disbarment is appropriate sanction where attorney knowingly converts
client property and causes injury or potential injury to a client. People
v. Bowman, 887 P.2d 18 (Colo. 1994).
Conduct violating this rule in conjunction with other disciplinary rules
is sufficient to justify disbarment.
People v. Nichols, 796 P.2d 966 (Colo. 1990);
People v. Ashley, 817 P.2d 965 (Colo. 1991);
People v. Rouse, 817 P.2d 967 (Colo. 1991);
People v. Crimaldi, 804 P.2d 863 (Colo. 1991);
People v. Bergmann, 807 P.2d 568 (Colo. 1991);
People v. Rhodes, 814 P.2d 787 (Colo. 1991);
People v. Heilbrunn, 814 P.2d 819 (Colo. 1991);
People v. Whitcomb, 819 P.2d 493 (Colo. 1991);
People v. Koransky, 824 P.2d 819 (Colo. 1992);
People v. Bradley, 825 P.2d 475 (Colo. 1992);
People v. Southern, 832 P.2d 946 (Colo. 1992);
People v. Schindelar, 845 P.2d 1146 (Colo. 1993);
People v. Schaefer, 944 P.2d 78 (Colo. 1997);
People v. Skaalerud, 963 P.2d 341 (Colo. 1998).
Conduct violating this rule sufficient to justify disbarment.
People v. Kendrick, 646 P.2d 337 (Colo. 1982);
People v. Dwyer, 652 P.2d 1074 (Colo. 1982);
People v. Golden, 654 P.2d 853 (Colo. 1982);
People v. Bealmear, 655 P.2d 402 (Colo. 1982);
People v. Buckles, 673 P.2d 1008 (Colo. 1984);
People v. Gibbons, 685 P.2d 168 (Colo. 1984);
People v. Quick, 716 P.2d 1082 (Colo. 1986);
People v. James, 731 P.2d 698 (Colo. 1987);
People v. Carpenter, 731 P.2d 726 (Colo. 1987);
People v. Coca, 732 P.2d 640 (Colo. 1987);
People v. Stewart, 752 P.2d 528 (Colo. 1987);
People v. Quintana, 752 P.2d 1059 (Colo. 1988);
People v. Lovett, 753 P.2d 205 (Colo. 1988);
People v. Brooks, 753 P.2d 208 (Colo. 1988);
People v. Turner, 758 P.2d 1335 (Colo. 1988);
People v. Danker, 759 P.2d 14 (Colo. 1988);
People v. Costello, 781 P.2d 85 (Colo. 1989);
People v. Frank, 782 P.2d 769 (Colo. 1989);
People v. Johnston, 782 P.2d 1195 (Colo. 1989).
Conduct violating this rule sufficient to justify disbarment.
People v. Dulaney, 785 P.2d 1302 (Colo. 1990);
People v. Franks, 791 P.2d 1 (Colo. 1990);
People v. Gregory, 797 P.2d 43 (Colo. 1990);
People v. Vermillion, 814 P.2d 795 (Colo. 1991).
Conduct found to violate disciplinary rules.
People v. Bugg, 635 P.2d 881 (Colo. 1981);
People v. Razatos, 636 P.2d 666 (Colo. 1981),
appeal dismissed, 455 U.S. 930, 102 S. Ct. 1415, 71 L. Ed. 2d 639 (1982);
People v. Ross, 810 P.2d 659 (Colo. 1991).
Applied in People ex rel. MacFarlane v. Harthun, 195 Colo. 38, 581
P.2d 716 (1978); People v. McMichael, 196 Colo. 128, 586 P.2d 1 (1978);
People v. Harthun, 197 Colo. 1, 593 P.2d 324 (1979); People v. Pacheco,
199 Colo. 108, 608 P.2d 334 (1979);
People v. Belfor, 200 Colo. 44, 611 P.2d 979 (1980);
People ex rel. Silverman, v. Anderson, 200 Colo. 76, 612 P.2d 94 (1980);
People v. Barbour, 199 Colo. 126, 612 P.2d 1082 (1980);
People v. Meldahl, 200 Colo. 332, 615 P.2d 29 (1980);
People v. Dixon, 200 Colo. 520, 616 P.2d 103 (1980);
People v. Gottsegen, 623 P.2d 878 (Colo. 1981);
People v. Dutton, 629 P.2d 103 (Colo. 1981);
People v. Hebeler, 638 P.2d 254 (Colo. 1981);
People v. Archuleta, 638 P.2d 255 (Colo. 1981);
People v. Gellenthien, 638 P.2d 295 (Colo. 1981);
People v. Barbour, 639 P.2d 1065 (Colo. 1982);
People v. Castro, 657 P.2d 932 (Colo. 1982);
People v. Emmert, 676 P.2d 672 (Colo. 1983);
People v. Simon, 698 P.2d 228 (Colo. 1985).
Cases Decided Under Former DR 7-102.
Law reviews.
For article, "The Perjurious Defendant: A Proposed Solution
to the Defense Lawyer's Conflicting Ethical Obligations to the Court and
to His Client", see 59 Den. L.J. 75 (1981). For article, "Incriminating
Evidence: What to do With a Hot Potato", see 11 Colo. Law. 880 (1982).
For article, "Ethics, Tax Fraud and the General Practitioner", see 11 Colo.
Law. 939 (1982).
For article, "The Search for Truth Continued: More Disclosure, Less
Privilege", see 54 U. Colo. L. Rev. 51 (1982). For article, "The Search for
Truth Continued, The Privilege Retained: A Response to
Judge Frankel", see 54 U. Colo. L. Rev. 67 (1982).
For casenote, "Caldwell v. District Court:
Colorado Looks at the Crime and Fraud Exception to the Attorney-Client
Privilege", see 55 U. Colo. L. Rev. 319 (1984).
For article, "Defending the Federal Drug or Racketeering Charge", see 16
Colo. Law. 605 (1987).
For article, "A Proposal on Opinion Letters in Colorado Real Estate
Mortgage Loan Transactions Parts I and II", see 18 Colo. Law. 2283 (1989)
and 19 Colo. Law. 1 (1990).
For comment, "Attorney-Client Confidences: Punishing the Innocent", see
61 U. Colo. L. Rev. 185 (1990).
Attorney-client relationship required.
Rule requires the existence of an attorney-client relationship
as an essential element of the proscribed professional misconduct.
People v. Morley, 725 P.2d 510 (Colo. 1986).
A client is a person who employs or retains an attorney for advice
or assistance on a matter relating to legal business.
People v. Morley, 725 P.2d 510 (Colo. 1986).
The relationship of an attorney and client can be inferred from the
conduct of the parties.
People v. Morley, 725 P.2d 510 (Colo. 1986).
The relationship is sufficiently established when it is shown that
the client seeks and receives the advice of the lawyer on the legal
consequences of the client's past or contemplated actions.
People v. Morley, 725 P.2d 510 (Colo. 1986).
Attorney shall not use testimony that he knows is perjured.
People v. Schultheis, 44 Colo. App. 452, 618 P.2d 710 (1980),
rev'd on other grounds, 638 P.2d 8 (Colo. 1981).
If he does so, he commits subornation of perjury. A lawyer who presents a
witness
knowing that the witness intends to commit perjury thereby engages in the
subornation of perjury. People v. Schultheis, 638 P.2d 8 (Colo. 1981).
Trial court may explore adequacy of trial counsel's representations regarding
grounds for withdrawal, but in the course of this inquiry, the court may
not compel the attorney to disclose any confidential communications. People
v. Schultheis, 44 Colo. App. 452, 618 P.2d 710 (1980),
rev'd on other grounds, 638 P.2d 8 (Colo. 1981).
Attorney may not breach his duty of maintaining his client's confidences
even when he knows his client has previously perjured himself. People v.
Schultheis, 44 Colo. App. 452, 618 P.2d 710 (1980),
rev'd on other grounds, 638 P.2d 8 (Colo. 1981).
Unauthorized recordation of telephone conversation establishes unethical
conduct.
Telephone conversation, which attorney initiated and recorded without the
permission of other party to conversation, established unethical conduct
on attorney's part. People v. Wallin, 621 P.2d 330 (Colo. 1981).
Planned course of conduct which is unresponsive to civil discovery constitutes
intent to deceive, and such conduct is prejudicial to the administration
of justice. People v. Haase, 781 P.2d 80 (Colo. 1989).
In fulfilling the duty under Canon 7 of the Code of Professional
Responsibility to zealously represent a client, a lawyer may advance a
claim or defense not recognized under existing law if it can be supported by
a good
faith argument for an extension, modification, or reversal of existing law.
Sullivan v. Lutz, 827 P.2d 626 (Colo. App. 1992).
Unsuccessful appeal is not necessarily frivolous.
Because a lawyer may present a supportable argument which is extremely
unlikely to prevail on appeal, it cannot be said that an unsuccessful
appeal is necessarily frivolous.
Mission Denver Co. v. Pierson, 674 P.2d 363 (Colo. 1984).
An attorney should not pursue frivolous appeals. An attorney's
decision not to pursue a frivolous appeal complies with his ethical
responsibilities to his client. Hodges v. Barry, 701 P.2d 1240 (Colo. 1985).
Failure to inform arbitrators of errors in expert witness' testimony
constituted violation of DR 7-102 warranting public censure because attorney
did not disclose that expert had informed attorney of mistakes in writing,
and ttorney made closing arguments based on uncorrected expert conclusions.
People v. Bertagnolli, 861 P.2d 717 (Colo. 1993).
Actions taken by attorney contrary to court order violate this rule
and justify suspension.
People v. Awenius, 653 P.2d 740 (Colo. 1982).
False testimony and counselling such conduct warrant disbarment. When a
lawyer
counsels his client to testify falsely at a hearing on a bankruptcy petition
and the client does so, and the lawyer gives a false answer to a question
asked of him by the bankruptcy judge, his misconduct warrants disbarment.
People v. McMichael, 199 Colo. 433, 609 P.2d 633 (1980).
Conduct violating this rule in conjunction with other disciplinary rules
is sufficient to justify suspension.
People v. Smith, 830 P.2d 1003 (Colo. 1992).
Conduct violating this rule sufficient to justify suspension.
People v. Belfor, 197 Colo. 223, 591 P.2d 585 (1979);
People v. Barnthouse, 775 P.2d 545 (Colo. 1989),
cert. denied, 493 U.S. 1026,
110 S. Ct. 734, 107 L.Ed.2d 752 (1990);
People v. Bergmann, 790 P.2d 840 (Colo. 1990).
Conduct violating this rule in conjunction with other disciplinary rules
is sufficient to justify disbarment.
People v. Hansen, 814 P.2d 816 (Colo. 1991);
People v. Calt, 817 P.2d 969 (Colo. 1991);
People v. Whitcomb, 819 P.2d 493 (Colo. 1991);
People v. Smith, 830 P.2d 1003 (Colo. 1992);
People v. Southern, 832 P.2d 946 (Colo. 1992);
People v. Marmon, 903 P.2d 651 (Colo. 1995).
Conduct violating this rule sufficient to justify disbarment.
People v. Kendrick, 646 P.2d 337 (Colo. 1982);
People v. Dwyer, 652 P.2d 1074 (Colo. 1982);
People v. Morley, 725 P.2d 510 (Colo. 1986);
People v. Turner, 758 P.2d 1335 (Colo. 1988);
People v. Franks, 791 P.2d 1 (Colo. 1990);
People v. Mullison, 829 P.2d 382 (Colo. 1992);
People v. Sims, 913 P.2d 526 (Colo. 1996).
Conduct held to violate this rule.
People v. Goss, 646 P.2d 334 (Colo. 1982).
Applied in
People v. Good, 195 Colo. 177, 576 P.2d 1020 (1978);
People v. Meldahl, 200 Colo. 332, 615 P.2d 29 (1980);
People v. Rotenberg, 635 P.2d 220 (Colo. 1981);
Law Offices of Bernard D. Morley, P.C. v. MacFarlane,
647 P.2d 1215 (Colo. 1982);
People v. Simon, 698 P.2d 228 (Colo. 1985);
People v. Hebenstreit, 764 P.2d 51 (Colo. 1988).
Cases Decided Under Former DR 9-101.
Law reviews.
For article, "The Conflicted Attorney", see 11 Colo. Law. 2589 (1982).
For article, "Access and Friendship with Local Decision-makers -- May
a Lawyer Exploit", see 16 Colo. Law. 482 (1987).
For article, "Coping with the Paper Avalanche: A Survey on the Disposition
of Client Files", see 16 Colo. Law. 1787 (1987).
Since employment in a public defender's office is not the type
of public employment contemplated in paragraph (B) of this rule, no
conflict of interest can be perceived in the representation of a
defendant by a deputy public defender and the subsequent representation
by the same attorney in a private capacity of the defendant in the same
case. Coles, Manter & Watson v. Denver Dist. Court, 177 Colo. 210, 493
P.2d 374 (1972).
Disqualification of former district attorney and his firm was appropriate.
Disqualification of former district attorney and his firm from representing
client in case in which former district attorney had done investigation
under this canon was clearly appropriate.
Osburn v. District Court, 619 P.2d 41 (Colo. 1980).
Disqualification of district attorney's office required
where two former district attorneys are witnesses on contested
issues in case.
Pease v. District Court, 708 P.2d 800 (Colo. 1985).
Where a lawyer knows or should know that he is dealing improperly with
a client's property and causes potential injury to the client, a
suspension from the practice of law, at the very least, is an appropriate sanction.
People v. McGrath, 780 P.2d 492 (Colo. 1989).
Where there is no evidence of a specific identifiable impropriety,
there is no basis for disqualification under this canon. Food Brokers,
Inc. v. Great Western Sugar, 680 P.2d 857 (Colo. App. 1984).
Factors for determining "an appearance of impropriety"
discussed in Cleary v. District Court, 704 P.2d 866 (Colo. 1985).
"Substantial responsibility" requirement of paragraph (B) of this rule
applied in Cleary v. District Court, 704 P.2d 866 (Colo. 1985);
People v. Anaya, 732 P.2d 1241 (Colo. App. 1986),
rev'd on other grounds, 764 P.2d 779 (Colo. 1988).
Conduct violating this rule sufficient to justify disbarment.
People v. Dulaney, 785 P.2d 1302 (Colo. 1990).
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