OARC Update

WHAT YOU NEED TO KNOW

In this month’s What You Need to Know, we profile new rules recently adopted by the Colorado Supreme Court as well as proposed amendments to Colo. RPC 1.5(b) and Comment 2 to that rule.
 
Rules Governing Attorney Discipline and Disability
On May 20, 2021, the Colorado Supreme Court adopted amendments to the rules governing attorney discipline and disability proceedings effective for cases filed with the Presiding Disciplinary Judge or the Supreme Court on or after July 1, 2021, and as to all other matters covered by these rules, effective July 1, 2021. The amended rules can be found here. 
 
The amendments impacted other rules as well, and resulted in amendments to other procedural and professional conduct rules. For those amendments, click here.
 
Our office receives many inquiries regarding the duty to report convictions and misconduct. The requirements for the new rules are summarized below, as are the requirements to make disclosures to law firms.
 
Duty to Report Convictions

• Pursuant to C.R.C.P. 242.11(c)(1), a lawyer who is convicted of a crime must notify Regulation Counsel within 14 days of the conviction. This is consistent with the former reporting requirement.
• The new rules define “crime” in the Terminology section as “any offense that is punishable by imprisonment.” C.R.C.P. 241.
• The Terminology section also defines “conviction” as follows: any determination in a criminal matter, including at a federal, state, municipal, or other level, that a person is guilty, whether the determination rests on a verdict of guilty, a judicial finding of guilt, a plea of guilty, an Alford plea, or a plea of nolo contendere, irrespective of 1) whether entry of judgment or imposition of the sentence is suspended or deferred by the court, 2) whether the person is appealing the determination, and 3) whether sentencing has occurred. Id.  Importantly, and like the former rule regarding criminal conduct, deferred judgments are considered convictions.
• Consistent with the former reporting requirement, the duty to report convictions does not apply to misdemeanor traffic offenses that do not involve the use of alcohol or drugs, or to traffic ordinance violations that do not involve the use of alcohol or drugs. C.R.C.P. 242.11(c)(2).

• A new addition to the reporting requirement pertains to charges for serious crimes. C.R.C.P. 242.11(c)(1) provides that a lawyer who is charged with a serious crime must notify the Regulation Counsel of the charges in writing within 14 days. “Serious crime” is defined as “any felony; any lesser crime a necessary element of which, as determined by its statutory or common law definition, involves interference with the administration of justice, false swearing, misrepresentation, fraud, extortion, misappropriation, or theft; an attempt or conspiracy to commit such a crime; or solicitation of another to commit such a crime.” C.R.C.P. 241 Terminology.

• Pursuant to C.R.C.P. 242.11(d), a lawyer who has been publicly disciplined in another jurisdiction or who has resigned or otherwise voluntarily surrendered the lawyer’s license to practice law in connection with a disciplinary proceeding in another jurisdiction must notify Regulation Counsel in writing within 14 days of the order imposing public discipline or the resignation or surrender of the license.

• Within 14 days of receiving notice of the Regulation Committee’s authorization to file a complaint against the lawyer, the lawyer must disclose in writing that authorization to the lawyer’s current law firm, and if different, the law firm at the time of the alleged misconduct.  C.R.C.P. 242.16(e).
• When a lawyer is subject to an interim suspension (previously referred to as “immediate suspension”) for alleged serious disciplinary violations, the lawyer must disclose in writing the interim suspension order to the lawyer’s current law firm, and, if different, to the lawyer’s law firm at the time of the misconduct giving rise to the matter within 7 days of the supreme court’s order. C.R.C.P. 242.22(d).
• When a lawyer is subject to an interim suspension due to noncompliance with child support or paternity orders, the lawyer must disclose in writing the suspension order to the lawyer’s current law firm within 14 days of the order. C.R.C.P. 242.23(d).
• When a lawyer is subject to an interim suspension for failure to cooperate during the course of a disciplinary investigation, the lawyer must disclose in writing the suspension order to the lawyer’s current law firm within 14 days of the supreme court’s order.  C.R.C.P. 242.24(d).
• When a lawyer has been transferred to disability inactive status, the lawyer must, if able, disclose in writing the order to the lawyer’s current law firm within 14 days of the order. C.R.C.P. 243.8(b).

• Clarify that a lawyer must communicate the basis or rate of the fee and expenses in writing “except when the lawyer will continue to charge a regularly represented client on the same basis or rate...” 
• Add a new requirement that the lawyer must also communicate to the client in writing “the scope of the representation, except when the lawyer will perform services that are of the same general kind as previously rendered to a regularly represented client.”
• Refine the language requiring changes in the basis or rate of the fee be communicated promptly to the client in writing. 

• The conveyance of the basis or rate of the fees and expenses and scope need not take the form of a formal engagement letter or agreement, and need not be signed by the client.
• For the basis or rate, it is not necessary to recite all the factors that underlie the basis or rate of the fee, but only those that are directly involved in its computation. The comment explains that to satisfy this requirement, it is sufficient, “to state that the basic rate is an hourly charge or a fixed amount or an estimated amount, to identify the factors that may be taken into account in finally fixing the fee, or to furnish the client with a simple memorandum or the lawyer’s customary fee schedule.”
• With respect to scope, “it is not necessary to recite all the anticipated services that comprise, or the exclusions from, the scope of representation, so long as the communication accurately conveys the agreement with the client.”
• Changes in the basis or rate of the fees and expenses must be communicated in writing regardless of whether it’s a new client or a regularly represented client.
• With respect to changes in the scope of the representation, the comment explains that changes may occur frequently and are not required to be communicated in writing. The comment notes that other professional conduct rules may require additional communications and communicating such changes in writing may help avoid misunderstandings between clients and lawyers.
• Finally, the comment explains “[w]hen other developments occur during the representation that render an earlier communication substantially inaccurate or inadequate, a subsequent written communication may help avoid misunderstandings between clients and lawyers.”

MINDING YOUR Ps AND Qs IN ADVERTISING AND SOLICITATION

While Colorado's Rules of Professional Conduct were amended last year to eliminate some of the more formalistic provisions, they still have basic requirements to prevent misleading advertising.  Colo. RPC 7.1 states: "A communication is false or misleading if it contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading." 
 
So, can a lawyer or law firm use superlatives in advertising to claim to be the "best" or "most" at anything without further explanation?  For example, can a firm claim to be the "largest" firm in Colorado, if the advertisement does not specify what it means to be the largest?
 
Comment 3 to revised Colo. RPC 7.1 is informative:  "an unsubstantiated claim about a lawyer’s or law firm’s services or fees, or an unsubstantiated comparison of the lawyer’s or law firm’s services or fees with those of other lawyers or law firms, may be misleading if presented with such specificity as would lead a reasonable person to conclude that the comparison or claim can be substantiated."  However, "[t]he inclusion of an appropriate disclaimer or qualifying language may preclude a finding that a statement is likely to create unjustified expectations or otherwise mislead the public."
 
We will continue to feature reminders about Colorado lawyers' professional obligations in communications to the public regarding their services.

ACCLIMATING TO THE “NEW NORMAL” 

JULY BAR EXAM

REMINDERS & UPCOMING CLEs