As we've previously noted, on January 2, 2024, a break-in at the Ralph Carr Judicial Center resulted in significant damage to the building, including to the 5th floor where our offices are located. Fortunately, many of the services we provide are available electronically. While we continue to receive mail at the building, when possible, please use email and phone services to communicate with our office. We appreciate your continued patience.
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WHAT YOU NEED TO KNOW
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In this month’s What You Need to Know, we profile three new ethics opinions and proposed amendments to the Colorado Rules of Professional Conduct.
CBA Formal Opinion 149
The Ethics Committee of the Colorado Bar Association recently issued Formal Opinion 149 Ethical Obligations for Lawyers Engaging in Virtual Practice. The Opinion addresses professional obligations including competence, diligence, communication, confidentiality, supervision, and issues related to the unauthorized practice of law in relation to remote practice, such as when a Colorado attorney works from a residence in another state. The Opinion also addresses best practices for virtual practice technologies. Opinion 149 can be accessed here.
ABA Formal Opinion 510
On March 20, 2024, the ABA Standing Committee on Ethics and Professional Responsibility issued Formal Opinion 510 Avoiding the Imputation of a Conflict of Interest When a Law Firm is Adverse to One of its Lawyer’s Prospective Clients. Under Model Rule 1.18(c), a conflict of interest based on a consultation with a prospective client will generally be imputed to other lawyers in a firm. There are two situations when the conflict will not be imputed: when both the affected client and the prospective client give informed consent confirmed in writing, or under subsection (d)(2), when the following elements are met:
(2) the lawyer who received the information took reasonable measures to avoid exposure to more disqualifying information than was reasonably necessary to determine whether to represent the prospective client; and
(i) the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom; and
(ii) written notice is promptly given to the prospective client.
The Opinion analyzes the elements of subsection (d)(2), including discussing the type of information relevant to assessing a potential representation, what information is “reasonably necessary” to the determination, what constitutes “reasonable measures” to limit exposure, and what “timely screened” means. Opinion 510 can be accessed here.
ABA Formal Opinion 511
On May 8, 2024, the ABA Standing Committee on Ethics and Professional Responsibility issued ABA Formal Opinion 511 Confidentiality Obligations of Lawyers Posting to Listservs. This Opinion examines a lawyer’s use of listservs in relation to a lawyer’s duty of confidentiality under Model Rule 1.6. The Opinion first examines the breadth of the confidentiality obligation, highlighting that the Rule “protects all information relating to the representation, whatever its source” (see Comment 3 to Rule 1.6), which includes publicly available information. Client identity is also protected such that a lawyer may not use a hypothetical regarding the client matter that could reasonably lead to the discovery of the client’s identity or the situation, without obtaining the client’s consent. With these confidentiality obligations as the starting points, the Opinion explains that a lawyer may not post “questions or comments relating to the representation to a listserv without the client’s informed consent if there is a reasonable likelihood that the lawyer’s questions or comments will disclose information relating to the representation that would allow a reader then or later to infer the identity of the lawyer’s client or the situation involved.” The Opinion notes that the guidance regarding listservs extends to lawyers communicating about “their law practices with individuals outside their law firms by other media and in other settings, including when lawyers discuss their work at in-person gatherings.” Opinion 511 can be accessed here.
Proposed amendments to the Colorado Rules of Professional Conduct
On May 7, 2024, the Colorado Supreme Court held a public hearing to consider amendments to Colorado Rules of Professional Conduct 1.5 and 1.8. We previously summarized the proposal in our November newsletter. Public comments and links to the proposed changes can be found here.
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ANNUAL REPORT
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The Office of Attorney Regulation Counsel has published its 2023 annual report. The report profiles the work of the office, as well as demographic trends we observe from the annual registration data and the anonymous, voluntary demographic survey that is offered as part of the registration process. In this year’s report, we look more closely at characteristics of Colorado lawyers through the lens of age brackets: under 40, 40-59, and 60 and older. Those in the youngest age bracket are more likely to identify as diverse in terms of race, ethnicity and national origin, LGBTQ+ diversity, and disability. Similarly, those in the youngest age bracket show more diversity in terms of gender: of active attorneys under 40, 52% are female and 48% are male. In contrast, of active attorneys in the 60+ age group, 25% are female and 75% are male. Who are future Colorado attorneys? This year’s report examines this question. |
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LICENSED LEGAL PARAPROFESSIONAL EXAM
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On April 30, 2024, the Office of Attorney Admissions hosted Colorado’s first licensed legal paraprofessional exam. The exam was held in Denver with 70 applicants sitting for the one-day exam. The second administration of the exam will occur November 12, and applications for that exam are currently being accepted. More information about the LLP program can be found here. |
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LAWYER WELL-BEING RECOGNITION PROGRAM
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Ryann Peyton, the Executive Director of the Colorado Attorney Mentoring Program, provides an update on the reception and recognition ceremony for the Colorado Well-Being Recognition Program for Legal Employers.
On April 15 th the Colorado Well-Being Recognition Program for Legal Employers recognized the 2023 pledge to lawyer well-being participants who met their well-being priorities with a reception and recognition ceremony held at the Colorado Bar Association. Justice Monica Márquez provided remarks thanking the attendees for their commitment to improving well-being in Colorado’s legal profession. Attendees were recognized for being pioneers in the movement to help lawyers take care of one another. Participants in the 2023 program received recognition in the form of a virtual “badge” to display on their organization websites and e-mail signature lines, as well as a Certificate of Recognition issued by the justices of the Colorado Supreme Court.
More information regarding the Colorado Well-Being Recognition Program can be found here.
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REMINDERS & UPCOMING CLEs
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MAY
May 30 Artificial Intelligence – Part 2: Catching up to AI Ethically: How the Existing Ethics Rules Apply to AI, ABA 49th National Conference on Professional Responsibility, Denver (panel presentation with Melinda Bentley, Rachael Fletcher Cipoletti and April McMurrey, moderated by Wendy Muchman)
May 31 CLE reminder: Make-up plan CLE programs to be completed no later than May 31st
JUNE
June 1 Now Accepting Venmo, CashApp and Zelle: Electronic Payment Services and Client Protection Funds, National Client Protection Organization, Denver (Alan Obye)
June 3 New Attorney Oath of Admission Ceremony at Boettcher Concert Hall
June 14 All CLE Make-up plan affidavits are due
June 20 New Licensed Legal Paraprofessional Oath of Admission Ceremony at the Colorado Supreme Court
June 24 Practicing with Professionalism, CBA-CLE webinar
JULY
July 12 OARC’s Trust Account School, webinar (Margaret Funk and J.P. Moore)
July 30 and 31 Colorado Bar Exam at the National Western Complex
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