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In this month’s What You Need to Know, we profile a recent update to Colorado Rule of Professional Conduct 1.2 and a recent Colorado Supreme Court case.
Comment 14 to Rule 1.2 Amended to Address Mushrooms
On January 11, 2024, and effective immediately, the Colorado Supreme Court adopted an amendment to comment [14] to Rule 1.2 to reflect Colorado’s regulated legalization of psilocybin and certain other substances through the Colorado Natural Medicine Act of 2022 and related measures. Because the act allows legal use of certain substances that remain unlawful under federal law, the amendment adds a reference to the Natural Medicine Act in the so-called “marijuana comment” to Rule 1.2 to provide guidance to lawyers advising clients on compliance with state law. The amendment can be reviewed here.
Colorado Supreme Court Analyzes Colo. RPC 5.6
In Johnson Family Law, P.C. v. Bursek, the Colorado Supreme Court analyzed Colo. RPC 5.6(a), which prohibits restrictions on the right to practice. The case involved a “Reimbursement Agreement” between an associate and the law firm which provided that the lawyer would reimburse the law firm for marketing expenses related to any client, case or active matter that left the firm and followed the lawyer. The agreement set the per-client amount at $1,052. When the lawyer left and eighteen clients elected to go with him, the firm asserted the lawyer owed the firm $18,936, which the lawyer refused to pay. The law firm sued for breach of contract. In considering the case, the court held that the undifferentiated fee assessed for each client who chose to follow the departing lawyer violated Rule 5.6(a). The court also held that Rule 5.6(a) constitutes public policy, and because contracts that violate public policy are unenforceable, the agreement was unenforceable. The decision also explained that the Court of Appeals addressed the issue of severability sua sponte without explaining the justification for doing so. On this point, the court stated “an appellate court may not sua sponte address issues not presented by the parties without offering some clear justification for doing so.” The case was affirmed in part, reversed in part and remanded. 2024CO1
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