In this month’s What You Need to Know, we profile proposed rule and regulation amendments, and two recent ABA ethics opinions.
Proposed rule changes
Continuing Legal and Judicial Education Rules and Regulations
The Colorado Supreme Court has proposed amendments to the rules and regulations governing continuing legal and judicial education in Colorado. The Colorado Supreme Court will conduct a hearing on the proposed rules and regulations on Tuesday, April 6, 2021 at 3:30 p.m. via WebEx. Written comments on the proposed changes should be sent to Cheryl Stevens, Clerk of the Colorado Supreme Court, at 2 E. 14th Avenue, Denver, Colorado 80203 or emailed to firstname.lastname@example.org. Persons wishing to speak at the hearing should notify Ms. Stevens by email email@example.com or by telephone 720-625-5150. All comments and speaking requests must be received no later than Monday, March 29, 2021 at 4 p.m. For more information regarding the proposed amendments, click here.
In summary, those amendments to the CLE rules and regulations include, in part, the following:
- Colorado attorneys will still be required to complete 45 credit hours of CLE in each three-year compliance period. The new amendment will require that at least seven credit hours be devoted to a broader category of professional responsibility, rather than the more narrow category of legal ethics.
- The broader category of professional responsibility would include legal ethics, legal professionalism, and equity, diversity and inclusivity (“EDI”).
- Starting with CLE compliance periods that end December 31, 2023, Colorado attorneys would need to complete at least two credit hours in EDI and at least five credit hours in legal ethics or legal professionalism.
- The regulations will define what content is needed for programs to be accredited in legal ethics, legal professionalism, and EDI.
- The regulations also expand the definition of law practice management programming to include technology and leadership relating to the practice of law.
The Colorado Supreme Court has proposed amendments to rules governing the admission process in Colorado. The Colorado Supreme Court will conduct a hearing on the proposed rules on Wednesday, April 7, 2021 at 3:30 p.m. via WebEx. Persons wishing to participate in the hearing should notify Ms. Stevens by email firstname.lastname@example.org or by telephone 720-625-5150, no later than Wednesday, March 31, 2021 at 4 p.m. The public comment submission period is closed. The proposed rule changes were summarized in OARC’s November newsletter, which can be found here.
ABA Ethics Opinion 497
In February 2021, the ABA Standing Committee on Ethics and Professional Responsibility issued Opinion 497 Conflicts Involving Materially Adverse Interests. The Opinion notes that the Model Rules addressing conflicts with former clients (1.9) and prospective clients (1.18) use the phrase “materially adverse,” but notes that neither Rule explains when the interests of a current client are materially adverse to the former or prospective client. This Opinion discusses examples of situations where material adverseness may be found, including: suing or negotiating against a former client; attacking a lawyer’s own prior work; and examining a former client. The Opinion also notes that “in the absence of direct adverseness, generalized financial harm or a claimed detriment that is not accompanied by demonstrable harm to the former or prospective client’s interests does not constitute ‘material adverseness.’” The Opinion also addresses informed consent and waivers regarding materially adverse conflicts. ABA Formal Opinion 497.
ABA Ethics Opinion 498
In March 2021, the ABA Standing Committee on Ethics and Professional Responsibility issued Opinion 498 Virtual Practice. The Opinion examines common ethical issues that are implicated by a virtual law practice, which the Opinion defines as “technologically enabled law practice beyond the traditional brick and mortar law firm.” Specifically, the Opinion analyzes issues surrounding competence, diligence, communication, confidentially and supervision in the virtual law practice. The Opinion also examines virtual practice technologies and related ethical considerations. ABA Formal Opinion 498.