MAY 2022

OARC Update

A bimonthly newsletter of the
Office of Attorney Regulation Counsel


In this month’s What You Need to Know, we profile a proposed rule amendment, a recent rule change, a Colorado Court of Appeals case, and an ethics opinion.

Proposed Changes to Colo. RPC 1.8(e)

The Colorado Supreme Court is considering changes to Colorado Rule of Professional Conduct 1.8(e) and the Comments to the Rule, which concerns providing modest gifts to indigent clients. The proposal can be reviewed here. The deadline for comments is July 22, 2022 at 4 p.m. If submitting a public comment by email, the Clerk’s office requests that you attach your submission as separate document to your email in Word or PDF format and email to: ABA Model Rule 1.8(e) was amended in 2020. The proposed amendments to Colo. RPC 1.8(e) and the proposed comments are similar though not identical to the amendments to Model Rule 1.8(e).

Amendment to Colo. RPC 1.16A, Comment 3

On April 28, 2022, the Colorado Supreme Court adopted an amendment to Comment 3 to Colo. RPC 1.16A Client File Retention, effective immediately. This amendment updates the Comment to accurately reflect the requirement for retaining contingent fee agreements, as set forth in Colo. RPC 1.5(c)(3), to seven years following the final resolution of the case or termination of the lawyer’s services, whichever first occurs. The amendment can be viewed here.

Court of Appeals Case Interprets Colo. RPC 5.6 Prohibition on Restricting a Lawyer's Right to Practice

In the civil dispute case of Johnson Family Law, P.C. v. Bursek, a division of the Colorado Court of Appeals recently addressed a question of first impression regarding Colo. RPC 5.6(a) and a firm's requirement regarding departing lawyers.  The case pertained to an agreement between a law firm and a lawyer that would apply if the lawyer left the firm and clients opted to stay with that lawyer.   See 2022COA48.  Colo. RPC 5.6(a) generally prohibits firms from making an agreement that purports to restrict a firm's lawyer from practicing law after the lawyer departs the firm.   The division concluded that part of the agreement in that case violated Colo. RPC 5.6(a) and therefore was void as against public policy when it imposed on a departing associate a $1,052 fee per client who left with him.  The division used a "reasonableness" test to decide that this financial disincentive for departure violated Colo. RPC 5.6(a), and the published opinion sets forth a nonexclusive list of factors to be considered in evaluating such agreements.  See 2022COA48 ¶ 36.

ABA Formal Opinion 501

In April 2022, the ABA Standing Committee on Ethics and Professional Responsibility issued Opinion 501 Solicitation. The Opinion discusses the 2018 amendments to Model Rule 7.3 Solicitation, including the definition of solicitation and the new exceptions to the prohibition against solicitation. The Opinion explains that “[d]espite the 2018 clarifications, ambiguity remains concerning a lawyer’s ethical responsibility for the lawyer’s actions and for the actions of others who engage in live, person-to-person solicitation with specific individuals.” The Opinion discusses a lawyer’s ethical responsibilities regarding solicitation in relation to the acts of another, including a lawyer’s duty of supervision pursuant to Model Rule 5.3, and Model Rule 8.4(a). The Opinion examines four solicitation hypotheticals and analyzes whether the conduct would be permissible. Colorado’s advertising rules were amended in 2020 following the amendments to the ABA Model Rules regarding advertising, and are similar, but not identical to those amendments.


The Office of Attorney Regulation Counsel has published its 2021 annual report, revealing demographic trends, noting the first remotely-administered bar exams in Colorado, and outlining a significant increase in complaints against lawyers.   
A review of registration data shows that for actively-licensed Colorado lawyers under age 40, women out-numbered men (50.5%) for the first time since such data have been collected.  For active lawyers 40 and older, the historical percentages are persistent: 64% of those lawyers are men and 36% are women.
The report also analyzes data from the voluntary demographic survey, in which 28.5% of active attorneys participated.  Thanks to all attorneys who completed this very brief survey during the annual registration process!
The Attorneys' Fund for Client Protection also has published its annual report, which can be found here.


The Colorado Supreme Court has selected 17th Judicial District Magistrate Bryon Large as the Presiding Disciplinary Judge for the attorney regulation system. Magistrate Large will replace the Honorable William R. Lucero, who has served as the Presiding Disciplinary Judge since his appointment by the Colorado Supreme Court in 2004. We wish Judge Lucero the best in his retirement and welcome Magistrate Large.


There have been a number of recent disciplinary matters involving non-lawyer assistants or paralegals who are not properly supervised by the lawyer they assist, and the non-lawyer uses the lawyer’s law practice to engage in the unauthorized practice of law (UPL). Pursuant to a lawyer’s supervisory obligations (Colo. RPC 5.3), and a lawyer’s obligation not to assist with UPL (Colo. RPC 5.5(a)(3)), lawyers should make inquiry whether any non-lawyer has a documented history of UPL before hiring or contracting with that person. Information regarding those individuals enjoined by the Colorado Supreme Court from the practice of law can be found here.

For information on how to report UPL to our office, click here



May 31 CLE reminder: Make-up plan CLE programs to be completed no later than May 31st
June 10 Procedural Guidance v. Legal Advice: Where’s the Line? 2022 Virtual Domestic Relations and Probate Institute, Webinar (April McMurrey)
June 15 CLE reminder: Deadline to submit affidavit reporting completion for CLE make-up plans
June 17 Lawyers Behaving Badly: Breaking Down Causes, Impacts and Solutions, ALAS General Meeting (April McMurrey with Randy Curato, Givonna Long, William Busch and Christine Bush)
June 23 Update on Colo. RPC 3.8(d) Amendments, Presentation to the Attorney General’s Criminal Law Division (Jessica Yates)
June 27 Practicing with Professionalism, CBA-CLE webinar
July 15 Trust Account School (Margaret Funk and J.P. Moore)
July 26-27 July 2022 Bar Exam-National Western Complex
July 28 Practicing with Professionalism, CBA-CLE webinar

July 29 Federal Practice Update, Ethics Presentation, CBA-CLE (Erin Robson Kristofco)
Copyright © 2022 Office of Attorney Regulation Counsel, Colorado Supreme Court, All rights reserved.

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