OARC Update

As we noted in January’s Newsletter, on January 2, 2024, a break-in at the Ralph Carr Judicial Center resulted in significant damage to the building, including to the 5^th 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.

CALLS TO ACTION

WHAT YOU NEED TO KNOW

In this month’s What You Need to Know, we profile the Licensed Legal Paraprofessional program, updates to the Colorado Rules of Professional Conduct, and two new ethics opinions.

Licensed Legal Paraprofessional Update
 
The first exam administration for the Licensed Legal Paraprofessional (“LLP”) program is April 30, 2024.  While the deadline for applying to take the exam at that time has passed, there will be another exam administration November 12, 2024, and applications will be accepted starting May 1.  The Community College of Denver will offer another ethics class late summer.  The link is here and the registration deadline is July 22.  Current applicants and those interested in becoming LLPs also can attend an upcoming practicum being held June 21 at the Colorado Bar Association Continuing Legal Education (CBA-CLE). The LLP Practicum will offer lectures and roundtable exercises to participants. CBA-CLE will be posting a link for registration.

Updates to the Colorado Rules of Professional Conduct
 
On February 8, 2024, the Colorado Supreme Court amended Comment 1 to Rule 5.5, which addresses authorization to practice law. The newly added language comes at the end of Comment 1 and addresses the circumstances where a non-Colorado lawyer is present in Colorado and practicing law under the authority of another jurisdiction. The language provides: “Lawyers who are physically present in Colorado and provide legal services under the authority of another jurisdiction do not violate Rule 5.5(a)(1), provided such lawyers do not solicit or accept clients in Colorado for services to be performed in Colorado and do not hold themselves out, directly or impliedly, as authorized to practice law in Colorado.” The amendment became effective on February 8.  The amendment can be viewed here.
 
Also on February 8, 2024, the Colorado Supreme Court adopted amendments to the Colorado Rules of Professional Conduct to remove references to gender-specific pronouns (in many instances replacing the pronouns with reference to “the lawyer” or “the attorney”). The following rules were amended: Colo. RPCs 1.8, 1.13, 1.14, 4.2, 4.5 and 6.1. Those amendments also became effective on February 8 and can be reviewed here.

CBA Formal Opinion 148
 
The Ethics Committee of the Colorado Bar Association recently issued Formal Opinion 148 Ethical Issues When a Lawyer Includes a Client in a Group Email or Text to Counsel for Other Parties. The Opinion considers ethical issues for both the sending lawyer and the receiving lawyer when a lawyer copies the lawyer’s client on an email to opposing counsel. The Opinion explains a sending lawyer should not include their client unless the client gives informed consent. Further, if the sending lawyer does include their client, the sending lawyer has impliedly consented to the other counsel sending a reply that includes the sending lawyer’s client. For the lawyer receiving the email, the Opinion explains that lawyer may send a reply that includes the sending lawyer’s client provided that: “1) the reply is directed to the sending lawyer, not the sending lawyer’s client; 2) the reply is limited to the topic addressed by the sending lawyer; and 3) the reply is sent within a reasonable period of time and not used as a pretext later to communicate with the sending lawyer’s client.” P. 19. CBA Formal Opinion 148. 

ABA Formal Opinion 509
 
On February 28, 2024, the ABA Standing Committee on Ethics and Professional Responsibility issued Formal Opinion 509 Disqualification to Prevent the Misuse of “Confidential Government Information”.  The Opinion analyzes Model Rule of Professional Conduct 1.11(c).  The first sentence of that subsection states: “Except as law may otherwise expressly permit, a lawyer having information that the lawyer knows is confidential government information about a person acquired when the lawyer was a public officer or employee, may not represent a private client whose interests are adverse to that person in a matter in which the information could be used to the material disadvantage of that person.”  The Opinion explains this subsection seeks to prevent the exploitation of confidential government information acquired by a lawyer while serving as a public officer or employee. The Opinion notes the following:

• Rule 1.11(c) is an additional confidentiality provision for lawyers who serve or served on behalf of the government, irrespective of whether the lawyer served in a representational capacity.
• The information that is protected includes confidential government information obtained under government authority, which includes information obtained pursuant to grand jury subpoena, a search warrant, a regulatory subpoena, or other government power.
• Rule 1.11(c) does not apply to all government information, “but only to information that, at the time the Rule is applied, the government is legally prohibited from disclosing to the public or has a legal privilege not to disclose if the information is not otherwise publicly available.”  P.4.
• This subsection applies to those lawyers currently serving (full or part time) and those who formerly served as public officers or employees.  
• “Private client” includes any client, including individuals, entities, and government entities, which are not entitled to use the confidential government information.  

Subsection (c) of Model Rule 1.11 is identical to Colo. RPC 1.11(c). ABA Formal Opinion 509.

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