ANNOTATIONSCOMMENT
The definition of the practice of law is established by law and
varies from one jurisdiction to another. Whatever the definition,
limiting the practice of law to members of the bar protects the public
against rendition of legal services by unqualified persons. Paragraph
(b) does not prohibit a lawyer from employing the services of
paraprofessionals and delegating functions to them, so long as the
lawyer supervises the delegated work and retains responsibility for
their work. See Rule 5.3. Likewise, it does not prohibit lawyers from
providing professional advice and instruction to nonlawyers whose employment
requires knowledge of law; for example, claims adjusters, employees of
financial or commercial institutions, social workers, accountants and persons
employed in governmental agencies. In addition, a lawyer may counsel nonlawyers who wish to proceed pro se.
COMMITTEE COMMENT
The two subparts in this Rule are nearly identical to DR 3-101(B)
and DR 3-101(A), respectively. Rule 5.3(b) replaces "nonlawyer" found
in DR 3-101(A) with "person who is not a member of the Colorado bar."
The latter phrase is better, especially since it should eliminate some
of the confusion that now arises when lawyers who are licensed elsewhere
relocate to Colorado and begin work, perhaps in a law firm as an
associate, before gaining admission to the Colorado bar.
ANNOTATION
Law reviews. For article, "Negotiations and the Unauthorized
Practice of Law", see 23 Colo. Law. 361 (1994).
Annotator's note.
Rule 5.5 is similar to
DR 3-101 as it
existed prior to the 1992 repeal and reenactment of the Code of
Professional Responsibility.
Relevant cases construing
that provision have
been included in the annotations to this rule.
An attorney's appearance as counsel of record in numerous court
proceedings following an order of suspension constituted conduct involving
the unauthorized practice of law. People v. Kargol, 854 P.2d 1267 (Colo.
1993).
An attorney who is suspended for failure to comply with CLE
requirements is barred
from practicing law under this rule and C.R.C.P. 241.21 (d), the same as
if the attorney had
been suspended following a disciplinary proceeding. Continuing to practice
law after such an
administrative suspension warranted an additional 18-month suspension.
People v. Johnson, 946
P.2d 469 (Colo. 1997).
Public censure justified where, although the attorney failed to notify
opposing counsel and appeared in one hearing after imposition of the
suspension, the attorney's involvement was minimal, it occurred only upon
request
by the client, it did not result in any harm to the client, and the attorney
did not receive any benefit from the appearance. People v. Pittam, 917 P.2d
710 (Colo. 1996).
Public censure appropriate for practicing law while suspended where 90-day
suspension
ended four years before the unauthorized practice and where the attorney never applied for
reinstatement. People v. Cain, 957 P.2d 346 (Colo. 1998).
Suspension of one year and one day warranted in light of the
seriousness of attorney's misconduct in conjunction with his noncooperation
in the disciplinary proceedings and his substantial experience in the
practice of law. People v. Clark, 900 P.2d 129 (Colo. 1995).
Conduct violating this rule, in conjunction with other disciplinary
rules,
sufficient to justify disbarment where the attorney continued to practice
law while
on suspension, repeatedly neglecting his clients and failing to take
reasonable steps to
protect clients' interests. People v. Fager, 938 P.2d 138 (Colo. 1997).
Conduct violating this rule in conjunction with other rules of
professional conduct is sufficient to justify public censure.
People v. Newman, 925 P.2d 783 (Colo. 1996).
Conduct violating this rule in conjunction with other disciplinary
rules is sufficient to
justify suspension. People v. Johnson, 946 P.2d 469 (Colo. 1997).
Conduct violating this rule sufficient to justify disbarment where
attorney continued to practice law when under suspension. People v. Redman,
902 P.2d 839 (Colo. 1995); People v. Ebbert, 925 P.2d 274 (Colo. 1996).
Counsel violated this rule by allowing his non-lawyer wife to conduct
initial client interviews and to counsel clients concerning appropriate
actions to take while in bankruptcy proceedings. This in conjunction with
violation of other disciplinary rules was sufficient to justify disbarment.
People v. Steinman, 930 P.2d 596 (Colo. 1997).
Conduct violating this rule in conjunction with other disciplinary
rules sufficient
to justify disbarment. People v. Steinman, 930 P.2d 596 (Colo. 1997);
People v. Holmes, 955 P.2d 1012 (Colo. 1998);
In re Hugen, 973 P.2d 1267 (Colo. 1999).
Cases Decided Under Former DR 3-101.
Law reviews. For article, "Potential Liability for Lawyers Employing
Law Clerks", see 12 Colo. Law. 1243 (1983).
For formal opinion of the Colorado Bar Association Ethics Committee on
Collaboration with Non-Lawyers in the Preparation and Marketing of Estate
Planning Documents, see 19 Colo. Law. 1793 (1990).
License to practice law assures public that the lawyer who holds the
license will perform basic legal tasks honestly and without undue delay,
in accordance with the highest standards of professional conduct. People
v. Dixon, 621 P.2d 322 (Colo. 1981).
Public expects appropriate discipline for professional misconduct.
The public has a right to expect that one who engages in professional
misconduct will be disciplined appropriately.
People v. Dixon, 621 P.2d 322 (Colo. 1981).
Services of an attorney not licensed in Colorado
are compensable as attorney fees where no court appearances made and the
work performed consisted of obtaining a variance from a municipal zoning code.
Catoe v. Knox, 709 P.2d 964 (Colo. App. 1985).
Consulting services performed by an out-of-state lawyer do not constitute
unauthorized practice of law and therefore may be compensated as attorney fees.
Dietrich Corp. v. King Resources Co., 596 F.2d 422 (10th Cir. 1979).
Evidence sufficient to justify one-year suspension.
People ex rel. MacFarlane v. Boyls, 197 Colo. 242, 591 P.2d 1315 (1979).
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 warranted 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).
Permitting law clerk to render legal advice to clients constitutes
aiding a nonlawyer in the unauthorized practice of law. People v. Felker,
770 P.2d 402 (Colo. 1989).
Lawyer's review of living trusts which were sold by nonlawyers
constituted aiding a nonlawyer in the unauthorized practice of law.
Although suspension is generally proscribed for this type of conduct,
weighing factors in mitigation against the seriousness of the conduct,
public censure is an appropriate sanction in this case.
People v. Volk, 805 P.2d 1116 (Colo. 1991);
People v. Laden, 893 P.2d 771 (Colo. 1995).
The counseling and sale of living trusts by nonlawyers constitutes the
unauthorized practice of law. Lawyer's review of living trusts that were
sold by nonlawyers constituted aiding a nonlawyer in the unauthorized
practice of law. Six-month suspension held justified in this case because of
aggravating factors including selfish motive, multiple offenses, and refusal to
acknowledge the wrongful nature of such conduct. People v. Cassidy, 884 P.2d
309 (Colo. 1994).
Attorney's practice of law while on inactive status constituted
unauthorized practice of law. People v. Cassidy, 884 P.2d 309 (Colo.
1994).
Attorney's continued practice of law while under an order of suspension,
with no efforts to wind up the legal practice, and the failure to take action
to protect the legal interests of the attorney's clients, warrants
disbarment. People v. Wilson, 832 P.2d 943 (Colo. 1992).
Public censure justified where attorney failed to attend to
bankruptcy proceeding and scheduled meetings, failed to timely file
pleadings and responses, and allowed his paralegal to engage in
unauthorized practice of law. People v. Fry, 875 P.2d 222 (Colo.
1994).
Attorney who continued to practice law while under suspension but did not
harm any client was suspended. Attorney had been suspended from practice
for three years when the court imposed an additional three-year suspension.
People v. Ross, 873 P.2d 728 (Colo. 1994).
Conduct violating this rule sufficient to justify suspension.
People v. Macy, 789 P.2d 188 (Colo. 1990).
Continuing to practice law while suspended is conduct justifying
disbarment. People v. James, 731 P.2d 698 (Colo. 1987).
Conduct violating this rule in conjunction with other disciplinary rules
is sufficient to justify disbarment.
People v. Pilgrim, 802 P.2d 1084 (Colo. 1990);
People v. Mannix, 936 P.2d 1285 (Colo. 1997);
People v. Madigan, 938 P.2d 1162 (Colo. 1997).
Conduct violating this rule sufficient to justify disbarment.
People v. Bealmear, 655 P.2d 402 (Colo. 1982);
People v. Rice, 728 P.2d 714 (Colo. 1986).
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