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In this month’s What You Need to Know, we profile a proposed rule amendment, a recent rule change, a Colorado Court of Appeals case, and an ethics opinion.
Proposed Changes to Colo. RPC 1.8(e)
The Colorado Supreme Court is considering changes to Colorado Rule of Professional Conduct 1.8(e) and the Comments to the Rule, which concerns providing modest gifts to indigent clients. The proposal can be reviewed here. The deadline for comments is July 22, 2022 at 4 p.m. If submitting a public comment by email, the Clerk’s office requests that you attach your submission as separate document to your email in Word or PDF format and email to: supremecourtrules@judicial.state.co.us. ABA Model Rule 1.8(e) was amended in 2020. The proposed amendments to Colo. RPC 1.8(e) and the proposed comments are similar though not identical to the amendments to Model Rule 1.8(e).
Amendment to Colo. RPC 1.16A, Comment 3
On April 28, 2022, the Colorado Supreme Court adopted an amendment to Comment 3 to Colo. RPC 1.16A Client File Retention, effective immediately. This amendment updates the Comment to accurately reflect the requirement for retaining contingent fee agreements, as set forth in Colo. RPC 1.5(c)(3), to seven years following the final resolution of the case or termination of the lawyer’s services, whichever first occurs. The amendment can be viewed here.
Court of Appeals Case Interprets Colo. RPC 5.6 Prohibition on Restricting a Lawyer's Right to Practice
In the civil dispute case of Johnson Family Law, P.C. v. Bursek, a division of the Colorado Court of Appeals recently addressed a question of first impression regarding Colo. RPC 5.6(a) and a firm's requirement regarding departing lawyers. The case pertained to an agreement between a law firm and a lawyer that would apply if the lawyer left the firm and clients opted to stay with that lawyer. See 2022COA48 . Colo. RPC 5.6(a) generally prohibits firms from making an agreement that purports to restrict a firm's lawyer from practicing law after the lawyer departs the firm. The division concluded that part of the agreement in that case violated Colo. RPC 5.6(a) and therefore was void as against public policy when it imposed on a departing associate a $1,052 fee per client who left with him. The division used a "reasonableness" test to decide that this financial disincentive for departure violated Colo. RPC 5.6(a), and the published opinion sets forth a nonexclusive list of factors to be considered in evaluating such agreements. See 2022COA48 ¶ 36.
ABA Formal Opinion 501
In April 2022, the ABA Standing Committee on Ethics and Professional Responsibility issued Opinion 501 Solicitation. The Opinion discusses the 2018 amendments to Model Rule 7.3 Solicitation, including the definition of solicitation and the new exceptions to the prohibition against solicitation. The Opinion explains that “[d]espite the 2018 clarifications, ambiguity remains concerning a lawyer’s ethical responsibility for the lawyer’s actions and for the actions of others who engage in live, person-to-person solicitation with specific individuals.” The Opinion discusses a lawyer’s ethical responsibilities regarding solicitation in relation to the acts of another, including a lawyer’s duty of supervision pursuant to Model Rule 5.3, and Model Rule 8.4(a). The Opinion examines four solicitation hypotheticals and analyzes whether the conduct would be permissible. Colorado’s advertising rules were amended in 2020 following the amendments to the ABA Model Rules regarding advertising, and are similar, but not identical to those amendments.
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