CALLS TO ACTION
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Apply to Serve on a Supreme Court Committee
Want to be involved in evaluating the character and fitness of applicants? Or other regulatory work relating to the practice of law? A variety of Supreme Court committees play an important role in supporting the Court’s regulation of the practice of law. Lawyers and non-lawyers are invited to apply to serve on a committee, and several openings are expected later this year. Click here to learn more about the committees and the application process. Applications are accepted at any time and will be considered for the next openings.
Pro Bono Survey
Who does pro bono work and how much? The American Bar Association Center for Pro Bono and Public Service in collaboration with Baylor University is surveying lawyers nationwide to better understand legal services provided to low and moderate income people. The survey is for all lawyers—whether you have provided pro bono services or not. Colorado’s anonymous survey results will be provided to the Colorado Access to Justice Commission. Please complete the survey by June 1, 2023.
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WHAT YOU NEED TO KNOW
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In this month’s What You Need to Know, we profile a proposed rule amendment and a recent ABA Formal Opinion.
Proposed Changes to Colo. RPC 1.4 Communication
The Colorado Supreme Court is considering changes to Colorado Rule of Professional Conduct 1.4 and the Comments to the Rule, which address a lawyer’s duty of communication. The proposed amendment would require lawyers in private practice to inform a new client, in writing, within a reasonable time after commencing the representation if the lawyer is not covered by malpractice insurance. The amendment would require lawyers to keep a copy of the disclosure for seven years. The proposed Comment includes form language for this disclosure and explains that the disclosure requirement does not apply to lawyers exclusively in government practice or exclusively employed as in-house counsel. The proposed amendment can be viewed here. This proposal is different than the existing requirement under C.R.C.P. 227 that lawyers annually certify during registration whether they are covered by professional liability insurance. This proposal would not change that requirement.
The deadline to submit comments for the proposed amendment is September 5, 2023 by 4 p.m. If submitting a public comment by email, the Clerk’s office requests that you attach your submission as a separate document to your email in Word or PDF format and email to: supremecourtrules@judicial.state.co.us. Requests to speak at the public hearing should also be addressed to supremecourtrules@judicial.state.co.us, and the deadline for such requests is September 12, 2023 at 4 p.m. The public hearing is set for September 20, 2023 at 3:30 p.m.
ABA Formal Opinion 505
Earlier this month, the ABA Standing Committee on Ethics and Professional Responsibility issued Opinion 505 Fees Paid in Advance for Contemplated Services. The Opinion discusses a lawyer’s obligations under the Model Rules, specifically Rules 1.5, 1.15 and 1.16 with respect to fees paid to a lawyer in advance. The Opinion begins by discussing terminology and then analyzes receipt and handling of advanced fees. The Opinion provides the following guidance:
- The fees paid to a lawyer before work is completed (fees paid in advance of work) do not belong to the lawyer upon receipt.
- Those fees must be placed in a trust account—not commingled with the lawyer’s personal funds—and safeguarded in the trust account, “to be disbursed to the lawyer only after the fee has been earned”.
- Advance fees paid for work to be completed in the future should not be characterized as “nonrefundable”, as that characterization is not accurate.
- If the representation terminates before the fees are earned, the fees must be refunded.
- In all cases, fees must be reasonable.
The Opinion examines three hypotheticals (“nonrefundable retainer”, “purported general retainer”, and “flat fee”) in light of these obligations.
Although the guidance in the Opinion is consistent with the obligations under Colorado’s Rules of Professional Conduct, Colorado’s Rules provide more specific requirements:
- Colo. RPC 1.5(f) specifically addresses advanced fees and explains fees are not earned until a lawyer confers a benefit, and further, that those unearned funds must be deposited into the lawyer’s trust account until earned.
- Colo. RPC 1.5(g) specifically prohibits nonrefundable fees and nonrefundable retainers.
- Colo. RPC 1.5(h) specifically addresses flat fee agreements and includes a court-approved form flat fee agreement.
- Also of note, when the ABA Opinion refers to “general retainers”, in Colorado, that type of fee is referred to as an “engagement retainer” and is addressed at Comments 16 and 17 to Colo. RPC 1.5.
- Colorado’s Rules regarding trust accounts and safekeeping funds are found at Colo. RPCs 1.15A-1.15E.
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ANNUAL REPORT
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The Office of Attorney Regulation Counsel has published its 2022 annual report. The report profiles the work of the office, as well as demographic trends and observations about attorney mobility and increasing diversity. For example, registration data shows that 18.6% of active Colorado attorney registrations do not list Colorado as the attorney’s preferred address. Similarly, 16% of those who completed the Office’s voluntary demographic survey indicated that their primary work location was not Colorado. What does it mean to be a “Colorado lawyer” these days? And how have policy changes in admission to practice in Colorado increased lawyer mobility? This year’s annual report examines these issues.
Another trend discussed in the report pertains to women and men in the profession. Since 2014, the percentage of women attorneys in their 20s and 30s has gradually increased each year. For the second year in a row since OARC started reporting this data, for lawyers with an active law license, women under age 40 outnumbered men under age 40.
The Attorneys’ Fund for Client Protection has also published its annual report, which 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, discusses the Court’s Well-Being Recognition Program and ways to get involved.
If lawyers don’t take care of each other, who will? The Colorado Supreme Court’s Well-Being Recognition Program for Legal Employers is a first-of-its-kind Program to recognize legal employers for implementing well-being strategies and recommendations in their organizations. Take the Pledge to Well-Being on behalf of your organization or on behalf of yourself, join our facilitated educational series offering idea crowdsourcing for well-being strategies, and be recognized by the Colorado Supreme Court for your well-being commitments and achievements.
We hope you’ll join us to make Colorado a national leader in lawyer-led well-being solutions. Promoting attorney well-being is good for business, good for clients, and the right thing to do!
Visit https://coloradolawyerwellbeing.org for more information and to take the pledge!
Join our June 22 nd Free Lunch & Learn event to learn more about secondary trauma and how it impacts your personal and organizational well-being outcomes. Learn more and register at https://coloradolawyerwellbeing.org/program-events/
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NEW CLE SYSTEM COMING SOON
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Within the coming weeks, the Office of Attorney Regulation Counsel ("OARC") will transition to a new on-line system for attorneys to submit continuing legal education ("CLE") affidavits and monitor their transcripts for compliance.
The current CLE transcript website will be offline for two to three days at the end of May for data migration to the new system. OARC’s website will be updated with those precise offline dates soon, and will notify users through email as well. During that time, attorneys will not be able to enter affidavits to their transcript. OARC thanks you for your patience while we migrate to a new and improved CLE database!
A blast e-mail will be sent out instructing recipients to create a new log-in so that in the future the system will not require entry of an individual’s date of birth. At the point of creating this new log-in, the system will not request a credit card, bank account, or similar information. Additionally, the new password will be encrypted so it will not be accessible by staff; if you forget what password you created, you will need to use the “forgot password” feature to create a new password and instructions will be sent to the registered email on file with Attorney Registration.
An announcement will be made at OARC's website, www.coloradosupremecourt.us, at the same time as the blast email about the new CLE system.
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REMINDERS & UPCOMING CLEs
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MAY
May 22 Oath of Admission Ceremony at Boettcher Concert Hall
May 31 CLE reminder: Make-up plan CLE programs to be completed no later than May 31st
JUNE
June 15 Rule 8.4(i) in Action, presented during Best Practices and Ethics in the Profession, live at CBA-CLE (Alan Obye and James Wilder)
June 15 all CLE make-up plan affidavits are due
June 16 Procedural Guidance v. Legal Advice: Where’s the Line? presented at the Domestic Relations and Probate Institute, live at the Ralph Carr Judicial Building (April M. McMurrey)
June 26 Practicing with Professionalism, CBA-CLE webinar
JULY
July 14 OARC’s Trust Account School, live, Ralph Carr Judicial Building (Margaret Funk and J.P. Moore)
July 15 Ethical Issues in Real Estate Transactions, Including the Hazards of Representing Borrowers and Guarantors, 41st Annual Real Estate Symposium, live in Vail (E. James Wilder)
July 25 and 26 Colorado Bar Exam at the National Western Complex
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