Legal Ethics Overhaul

On January 1, 2008, the biggest overhaul in the rules governing the professional conduct of Colorado lawyers in fifteen years will take effect.

Is the 163 page long rewrite just window dressing, or will this really change the practice of law in the state?Mostly, they narrow the ethical obligations of government lawyers, while expanding the duty and ability to lawyers to prevent client misconduct and fraud.

As explained by the Colorado Supreme Court appointed committee that prepared the new rules, they are based upon the “Ethics 2000” initiative of the American Bar Association, the national professional association for lawyers whose Model Rules of Professional Conduct provide the based for the Colorado Rules of Professional Conduct currently in force in the state.  Colorado has made a handful of deviations from the national scheme, but largely adopts it.

So, what changes? 

Government Lawyers

* The notion that government lawyers represent “the public interest” is abandoned.  Government lawyers are also no longer presumed to have the interest of the entire government, as opposed to their particular agency, as a client.

* Rules allowing former government lawyers to be screened from cases in which they were previously involved at their new firm, and limiting the ability of government lawyers to look for employment at firms that are litigating with in their government jobs, are clarified.

Civil Liability

* The rules bow to common practice by declaring that the rules establish standards of conduct for lawyers, not only for the purpose of determining their ability to keep their licenses, but also for purposes of civil liability.

Client Misconduct and Lawyer Fraud

* Lawyers have a greater duty and right to correct fraudulent conduct that they were duped into facilitating, and the definition of fraud is also broadened to include acts that are technically considered fraud under Colorado or federal law, or are “half truths” that mislead, even if they don’t fit a traditional definition of fraud.

* Corporate lawyers have an enhanced ability to blow the whistle against the wishes of management when management is acting contrary to the best interests of the organization.

* The duty of a lawyer to be truthful to a court and correct prior misstatements is heightened.

* The ability of a lawyer to breach a client confidence to prevent serious bodily injury or death is expanded to cases that do not involve crimes and to cases where the harm is merely “reasonable certain” as opposed to “imminent”, in cases such as violations of environmental laws which are not crimes.

Law Firm Management

* Partners in law firms have a greater duty to keep their subordinates in line.

* Clarifies and narrows the scope of what a disbarred or suspended lawyer may do for a law firm.

Other Changes

* The new rules more clearly state when sex with clients is prohibited, although the underlying rules are not changed.

* The new rules make clear that lawyers have some limited duties towards prospective clients who don’t end up hiring the lawyer, but disclose confidences in an initial consultation.

* Lawyers are no longer permitted to “represent the deal” in writing up a contract between parties whose interests are opposed to each other, a new rule describes the similar but not identical role of a lawyer who is serving as a mediator or arbitrator.

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Andrew Oh-Willeke

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