OARC Update

A bimonthly newsletter of the
Office of Attorney Regulation Counsel


In this month’s What You Need to Know, we profile amendments to Colo. RPC 1.5(b) and Comment 2 to that rule, and recent ethics opinions.

Amendment to Colo. RPC 1.5 and Comment 2
On September 9, 2021, the Colorado Supreme Court adopted amendments to Colo. RPC 1.5(b) and Comment 2 to that rule, effective January 1, 2022. To review the amendment, click here

Rule 1.5(b) currently requires that when a lawyer has not regularly represented the client, the basis or rate of the fee and expenses shall be communicated in writing to the client before or within a reasonable time after commencing the representation. The rule also requires that any changes in the basis or rate of the fee shall be promptly communicated to the client in writing.

The amendments to Rule 1.5(b) do the following:

  • 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 that changes in the basis or rate of the fee be communicated promptly to the client in writing.
The amendments to Comment 2 to Rule 1.5(b) further explain the rule amendments and provide:
  • 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.”
CBA Formal Ethics Opinion 142

In July, the Ethics Committee of the Colorado Bar Association issued Formal Opinion 142 A Lawyer’s Duty to Inquire When the Lawyer Knows a Client is Seeking Advice on a Transactional Matter That May be Criminal or Fraudulent. The Opinion addresses a lawyer’s ethical obligations pursuant to Colo. RPC 1.2(d) for transactional matters, and specifically a lawyer’s duty to inquire. The Opinion analyzes what it means to “know” conduct is criminal or fraudulent, and concludes actual knowledge includes willful blindness.  The Opinion discusses the repercussions for failing to inquire. The Opinion also discusses other states’ ethics opinions, as well as ABA Formal Op. 491 Obligations Under Rule 1.2(d) to Avoid Counseling or Assisting in a Crime or Fraud in Non-Litigation Settings (2020). The Opinion concludes with examples to illustrate when a lawyer has a duty to inquire. CBA Formal Ethics Op. 142 

CBA Formal Ethics Opinion 143
In July, the Ethics Committee of the Colorado Bar Association issued Formal Opinion 143 Foundations of a Fee Agreement. The Opinion discusses a lawyer’s ethical obligations and best practices for fee agreements. The Opinion also includes resources and a checklist. CBA Formal Ethics Op. 143 

ABA Formal Ethics Opinion 499
Earlier this month, the ABA Standing Committee on Ethics and Professional Responsibility issued Opinion 499 Passive Investment in Alternative Business Structures. The Opinion discusses the ethical implications for a lawyer passively investing in a law firm that includes nonlawyer owners.  The Opinion explains how some jurisdictions have modified or eliminated their version of Model Rule 5.4, which addresses a lawyer’s professional independence, in favor of permitting the creation of Alternative Business Structures (ABS), where nonlawyers can own or invest in the law firm. The Opinion concludes that a lawyer in a Model Rule jurisdiction may make a passive investment in an ABS without violating Rule 5.4 and without resulting in the imputation of the ABS’s client conflicts of interest to the investing lawyer under Model Rule 1.10, provided that “the investing lawyer does not practice law through the ABS, is not held out as lawyer associated with the ABS, and has no access to information protected by Model Rule 1.6 without the ABS clients’ informed consent or compliance with an applicable exception to Rule 1.6 adopted by the ABS jurisdiction.” The Opinion also explains that if a lawyer has a personal interest conflict at the time of the investment, the lawyer must refrain from the investment or address the conflict pursuant to Model Rule 1.7(b). ABA Formal Opinion 499 


Attorneys play an important role in the judicial performance evaluation process. In this article, Kent Wagner, the Executive Director of the Office of Judicial Performance Evaluation, discusses the importance of participating and providing constructive feedback. To learn more, click here.


Admissions ceremonies are currently taking place on Thursdays, with some exceptions, via Zoom. Ceremonies for those who pass the July 2021 bar exam also will be held remotely on a schedule to be announced soon.  For more information and to register to take the Oath of Admission, click here.


As we near the end of the year, our office is preparing to send out registration statements. Be sure our office has your current contact information. To update your information, you may notify the office in writing by sending a letter, or by using the change of address form. You may also contact us by email to report any changes.

Sept. 30 Getting Paid: Colorado’s Rules Regarding Fees, Fee Agreements, and Record Keeping, American Immigration Lawyers Association (AILA) - Colorado chapter (Jonathan White)
Sept. 30 Best Processes and Efficiencies in Regulation, International Conference of Legal Regulators webinar (Margaret Funk)
Oct. 7 Earliest Date for Posting July 2021 Bar Exam Results
Oct. 7 The Intersection of Professionalism and Ethics: Perspectives from the Office of Attorney Regulation Counsel, CBA-CLE (Jonathan White)
Oct. 8 Trust Account School, hosted by OARC, remote via Zoom
Oct.18 Practicing with Professionalism, CBA-CLE webinar
Oct. 20 Fee Sharing, Office Sharing, and File Retention, LawBank Colorado (Jonathan White)
Oct. 20 Social Media: Ethical and Professionalism Obligations for the Tweeting Lawyer, Colorado Attorney Mentoring Program (April McMurrey)
Oct. 29 Social Media, Municipal Court Judges Association Conference (Margaret Funk)
Oct. 29 Ethics and Child Support, 2021 Virtual Judicial Huddle webinar (Jill Fernandez)
Nov. 1 Application filing deadline for February 2022 bar exam
Nov. 9 Ethics Update: New Rules and Hot Cases, SWCBA Law In The Trenches CLE (Alan Obye)
Nov. 9 CLE Presentation with Sarah Myers (COLAP), Karl Ranous Awards Dinner, Gunnison, CO (Jessica Yates)
Nov. 9 The Ethical Implications of Social Media in the Practice of Law, Douglas Elbert Bar Association (Jane Cox)
Nov. 16 The Ethics Revue: Starring the Law Club, Clocktower Cabaret, Denver (Jessica Yates)
Nov. 17 The Solo Lawyer’s Guide to Communication, Reasonable Fees, and Diligence; LawBank (Michele Melnick)
Nov. 19 Succession Planning: Five Easy Steps and One Hard One, Ethics 7.0, CBA-CLE (Jonathan White, with Erika Holmes and Gerald Pratt)
Nov. 19 Ethical Foundations of a Fee Agreement, Ethics 7.0, CBA-CLE (April McMurrey)
Nov. 19 OARC: Tips for Avoiding (and Addressing) Complaints, Ethics 7.0, CBA-CLE (Jane Cox)
Dec. 1 Late application filing deadline for February 2022 bar exam
Dec. 3 Keeping Up with Ethical Obligations in a Changing World, Weld County Bar Association (Jane Cox)
Dec. 8 Working with Attorneys, New Judge Orientation, Ralph Carr Building (Jessica Yates)
Dec. 13 Practicing with Professionalism, CBA-CLE webinar
Copyright © 2021 Office of Attorney Regulation Counsel, Colorado Supreme Court, All rights reserved.

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