OARC Update

CALLS TO ACTION 

WHAT YOU NEED TO KNOW

In this month’s What You Need to Know, we profile the recent amendment to Rule 1.5(b), a proposed rule amendment, and a recent ethics opinion.

Amendment to Rule 1.5(b) is effective as of January 1, 2022

As we discussed in our September newsletter, the Colorado Supreme Court adopted amendments to Colo. RPC 1.5(b) and Comment 2 to that rule, which became effective on January 1, 2022. The new amendment requires that lawyers include the scope of representation, along with the basis or rate of the fee, for new clients.

With this recent amendment, now is a good time to review your engagement documents to ensure you are in compliance with Rule 1.5. Another helpful resource when reviewing your engagement materials is CBA Ethics Op. 143 Foundations of a Fee Agreement, which discusses requirements and best practices for fee agreements.

Proposed Changes to Colo. RPC 3.8(d) Regarding Prosecutors’ Duties

As we noted in November, the Colorado Supreme Court is considering changes to Colorado Rule of Professional Conduct 3.8(d) concerning the special duties of prosecutors to disclose exculpatory evidence.  A subcommittee of the Standing Committee on the Rules of Professional Conduct was formed to facilitate a constructive discussion between prosecutors and private and public criminal defense attorneys.  The resulting proposal includes the following:

• Prosecutors would be required to timely disclose to the defense all information, regardless of admissibility, that the prosecutor knows or reasonably should know could negate the guilt of the accused, mitigate the offense, or affect a defendant’s critical decisions in the case.  This information would include all unprivileged and unprotected mitigation information the prosecutor knows or reasonably should know could affect the sentence.
• An exception to this duty would exist when the prosecutor is relieved of this responsibility by statute, rule or protective order of the tribunal. 
• A prosecutor would not be allowed to condition plea negotiations on postponing disclosure of information known to the prosecutor that negates the guilt of the accused.
• The prosecutor would be required to make diligent efforts to obtain information subject to this rule that the prosecutor knows or reasonably should know exists, including by making disclosure requests to agencies known to the prosecutor to be involved in the case, and alerting the defense to the information if the prosecution is unable to obtain it.

The proposal can be reviewed here. The deadline for comments, addressed to supremecourtrules@judicial.state.co.us, is:  January 18, 2022 at 4 p.m. If submitting a public comment by email, the Clerk’s office requests that you attach your submission as a separate document to your email in Word or PDF format.   Requests to speak at the public hearing also should be addressed to supremecourtrules@judicial.state.co.us, and the deadline for such requests is January 31, 2022 at 4 p.m.  The public hearing is set for February 8, 2022 at 3:30 p.m.
 
CBA Formal Ethics Opinion 144
 
In November 2021, the Ethics Committee of the Colorado Bar Association issued Formal Opinion 144 Ethical Issues When a Lawyer is Faced with Questions About the Amount a Client May Owe a Third Person for Medical Expenses at the Conclusion of a Personal Injury Case. The Opinion addresses a lawyer’s ethical obligations when a lawyer identifies a discrepancy in the amount requested by a client’s creditor in a personal injury matter. When the amount the creditor requests is less than the total shown by other documents that the lawyer knows about, the lawyer has a duty of loyalty to the client and a duty of honesty to the creditor, and the lawyer must analyze whether there is an ethical obligation to notify the creditor. The Opinion emphasizes the importance of the lawyer communicating with the client regarding this issue, as well as the lawyer analyzing whether nondisclosure would amount to the lawyer assisting the client in committing a fraud, or would implicate the lawyer’s duty to not engage in dishonesty, fraud, deceit or misrepresentation, any of which would necessitate disclosure. The Opinion concludes by discussing whether the lawyer’s determination regarding disclosure creates a conflict of interest with the client.  CBA Formal Opinion 144.

CAMP IS THE NEW HOME OF LEGAL ENTREPRENEURS FOR JUSTICE

Ryann Peyton, the Executive Director of the Colorado Attorney Mentoring Program, announces below that the Legal Entrepreneurs for Justice program now resides within CAMP and explains the many benefits of this move.
 
The Colorado Attorney Mentoring Program (CAMP) is proud to be the new home of Colorado’s legal incubator Legal Entrepreneurs for Justice (LEJ). LEJ is a small business incubator for socially conscious lawyers providing affordable legal solutions to low and middle-income people in Colorado. This target market includes those people who fall into the so-called “justice gap”: individuals who make too much money to qualify for free legal services, but not enough to pay traditional market rates and assume the risk and inherent uncertainty of the traditional legal pricing model, the billable hour. LEJ provides the training, mentoring, resources, and support these lawyers need to establish their own socially conscious law practices.
 
The opportunity to acquire and grow the LEJ program will add to CAMP’s robust portfolio of programming and allow CAMP to continue to expand its reach and resources for all participants. The curriculum, training, partnerships, and technology adopted to facilitate the LEJ program will serve to benefit all CAMP participants in the office’s ability to interweave those resources and partnerships into CAMP’s mentoring plans, group mentoring experiences, and professional development offerings.
 
The next LEJ cohort begins in January 2023. Applications are accepted year-round. To learn more about LEJ and apply to join please visit www.lejco.org.

REMINDERS & UPCOMING CLEs