Practicing With
Professionalism
Presenled by lbe
Colorado Bar Association
&
Colorado Supreme Court
Attorney Regulation Counsel
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Attorney Regulation Counsel
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Central Intake
I, ,~[.uy I, 200? - December 31, 200?
II Requesls fo~ l~vestigation
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1 Diversion Agreement
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IAver~ge'Timeto Res,?lution iii'
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i Intake Divi$ion:
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!5.ISPb:SlTIONS
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• DIVERSION: NOT DISCIPLINE
• PRIVATE AOMONITION
• PUBLIC CENSURE
• SUSPENSION: 30 DAYS TO 1 YEAR
• SUSPENSION: 1 YEAR & 1 DAY TO 3 YEARS
• DISBARMENT: EIGHT YEARS + READMISSION
2
·WHE1\LDOESREPRESENTAT'ION
BEGIN?·
I.
. Perception of relationship
./ Client's mind
./ Reasonable belief
./ Subjective test
• Seeking advice
t
P!l.lJ.!~~t}!l.tJ!f-irl~
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5i\JJ.l..flJ,gJ1!..!..i!..\J1"eel1U!lIt is not necessarily the deternlining factor.
is not necessarily the determining factor.
COl11Jlllinkationwith pet:son
represeilted b)r coullsel: Rule 4:2
<
No Way! No How!
• Check & Verify with" opposing counsel"
• "Copying" opposing coullselwith letter to
opposing party - NO PROTECTION
• District Attorneys & i\·lullicipal Prosecutors BE CAREFUL
3
HYPOTHETICAL
You are a prosecutor ... defendant is
represented by public defender ...defendant
calls you and says that he has" fired his
lawyer" and wants to talk to you.
What do you do?
Can you send an investigator to talk to him?
I-iolv:TbAvoi~Confi.i5ionAIJQut
Prqvide
,SerVke~jYoti HaveAgre~d To
• Engagement letters
~
• Fee agreements
. ...f,
, "Declining representation" letters .
• Why bother?
';~_'
• Prevention
~
Beware of:
, Telephone inquiries
• Unrepresented opposing parties in divorce cases
• Former clients when no specific termination
See e.g. People v. Bennett
HYPOTHETICAL
Potential client calls lawyer's office and talks
with lawyer's assistant. Potential client provides facts to assistant regarding automobile
accident and P.I. claim the potential client
may have. Assistant tells potential client to
send in the "reports." Potential client does
so ... hears nothing more from lawyer and
statute of limitations runs.
Attorney-Client Relationship?
4
Eval{~C;lting ~he PotentiaiCliept'
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Avoid Undesirable Clients:
,
"
•
•
Personal vendetta
Excessively needy/unstable client
Multiple previous attorneys
Big plans; tiny budget
Hands-on manager
"Hired gun" mentality
Phone and E-Mail contact only
Factors to Consider When
,. Acs~pting"A tliepfMkl~ter
,.
. 'I
• Understand the objectives of the client. ;,,,' ~
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It)
'Means professionally & legally allowed?
• Create only justified expectations.
• Avoid adverse interests.
Factors. to Consider When
A~s.epting·f\Cn~;n~M~ffeJ;'
• Competency
• Skill
"Experience
• Financial hardship (money to prepare case)
5
------------------
[
.._ •.
Ac~eptingA
.Ma~fe.r
Factors tb Consider When
Cli¢nt
Any foreseeable communication problems?
What abou t you? What is going on in
YOUR life that would create problems for
the client?
>-Ghost Writing is when an
attorney prepares pleadings
for a party appearing pro se.
~
LV
6
Ghost Writing is prohibited in the
Federal District Court for the District of
Colorado.
Preparing court documents but not
entering an appearance is
permitted in the Colorado State
Courts.
SeeC.R.C.P.ll;:\1I; 121 §1-1;
and Colo. RPC 1.2.
,""UNBUNDLED'
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l';EGAL SERYICE~
TI1<' "full bundk"
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('! r<~J.'n.",,,nl,lli"lll1"1 hli",.il.i"11
includes:
1) gathering facts,
2) advising the client.
3) discovering facts of opposing party.
4) researching the law,
5) drafting correspondence & documents,
6) negotiating, and
7) representing the client in court.
l,i
-_._-,
;DISTRICT ATTORNEYS
·g6;~~~;&~~E:~ERS
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1. Same Rules Apply:
Neglect - Conflicts
2. Higher Standard of Conduct
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1.
2.
3.
4.
5.
6.
Discovery Issues
Use of Subpoenas
Talking with Represented Defendant
Supervisor of Investigators
Victims - Witnesses
Engaging in private practice
(CRS. 20-1-201.)
1.
2.
3.
4.
5.
Communication with Clients
Neglect - Caseload Management
Witness Issues
Maintaining Professionalism
BOlmdary Issues
r:<·9.Qi~~N~~N~L,A~~RS.]
1. Conflicts - Multiple
Representation
2. Agency vs. Individuals
3. Neglect - Communication
4. Switching Sides
8
[.:RAI\ELY)~EGA~ ISSt{ES
:J
• ONE LAWYER - MANY CLIENTS
• COMMUNICATION TRUMPS COMPETENCE
• CLIENT CONTROL: [S ANY CLIENT WORTH
YOUR LICENSE?
• PERSONALITY: MOST GREAT LAWYERS
HAVE A GREAT PERSONALITY
i,){AR~~YL~GAt:~SSYES .1
• LETTERS AND E-MAIL: WAIT A
DAY
• PROFESSIONAL RELATIONSHIP:
LAWYERS, JUDGES, CLERKS,
SERVICE PROVIDERS
As much
(IS
you 1V0ultllike to ... DON'T:
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, DURING THE
REPRESENTATION'
The following
duties are
required during
the representation:
I
I,.DQTIESTO COURTS
],
• Officer of the Court
• Cannot make
misrepresentation to the
Court.
• Cannot assist client in
fraudulent or criminal
conduct. (Colo. RPC 1.2)
10
Rule 3,3
Candor to the Tribunal - Lawyer statements
"Wily don't tile lawyers also have
to swear to tell the truth?"
-
DUTIES,wO~9UR;rS'
'I
rPeople V, Casey
948 P.2d 1014 (Colo. 1997)
An re Cardwell
50 P.3d 897 (Colo. 2002)
I~:. D~,~~lJi~;.~'OU~TS
:1
Remedial measures must be taken if:
false material evidence has been offered or
a person intends to engage in criminal or
fraudulent conduct related to an adjudicative
proceeding,
Disclosure to h'ibunal must be included if
necessary
11
!
:SON~;LICr,SSC~.EEN:I~G·1
100% loyalty to client before and during
representation
Rule 1.7(a) A lawyer cannot represent a
client if the representation involves a
concurrent conflict, except as provided by
(b).
CdNFtICTSSCREENING
(gontiI\g~d) ..:
Rule l.7(b):
·1
No direct adversity
Can't materially limit responsibility
i\'{ust give each client informed consent
confirmed in writing
I· .CON~L(~:.i~~~~~~·I~
Rule 1.8(a):
Transactions with clients:
'Two writings required.
• Disclosures must be adequate.
• If attorney profits olltside of legal fees,
disclosures are essential.
People v. Silver, 924 P.2d 159 (Colo. 1996)
12
HYPOTHETICAL Lawyer represents father and son on
burglary charges. DA believes father is more
culpable and wants to offer son a better deal
in exchange for testifying.
DA tells lawyer he has a cont1ict, but
lawyer refuses to get off the case. Motion to
Disqualify is denied.
iI
[,
.'DURINGTHE
..
.. .
REPRESENTATION'
Rule 1.6:
Confidentia I ity
a. Exceptions
1. Permissive;
2. 7 Exceptions;
3. Address Fraud & Financial
lnjut'y;
4. Disclosure bv other law,
ct. order
.
b.
Work Product
c.
Attornev-Client Privile e
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. COMPETENCE
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Colo. RPC 1.1
13
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NEGLEC.1
II
. Neglect of a legal matter
1. Colo. RPC 1.3
2. Act promptly, avoid delay
HYPOTHETICAL
Three (3) year lawyer has high volume practice. He
takes fees and uses them before the work is
performed. Over-schedules court dates and does
not appear. Fails to get work done.
Too Much-Too Quickly
Fee Upfront
Office Management
Issues with Judges
14
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COMMUN1CATION
',....
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1. Colo. RPC 1.4
2. Keep clients informed of status
3. Explain alternatives and legal ramifications
4. Communicate when nature of case changes
I~
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?J..(PER,YISE ST AFF
Don't Let Your Staff Run Your Office
People 11. Stewart,
892 P.2d 875 (Colo. 1995)
People 11. Reyllolds,
933 P.2d 1295 (Colo. 1997)
People 1'. Milller,
35 P.3d 670 (Colo. G.P.D.). 2001)
(Colo. RPC 1.4 - Conununication
Colo. RPC 1.3 - Neglect)
Colo. RPC 1.16
(a) MANDATORY WITHDRAWAL
1) Representation will result in violation of
professional rules or other law.
1) The lawyer's physical or mental health impairs
ability to practice law.
1) Lawyer is discharged.
1) Lawyer is suspended. (People
71•
1011llSOIl)
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TERl\trrN ATION/WITHDRAWAL'
,: :. ' "(Continu~d)'
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PERMISSIVE Wrll,IDRAWAL
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\Vithdrc1wal call be ch:complished without material
adverse effect on the interests of the client.
1)
The client persists in tl course of (lelian involving the
lawver's se-rvinls tlMl the I,lwver rt:'tlSOlltlblv believes is
rrinlindl or fraudulent.
~
.
The client IM5 U5l't.! till'
.1)
Id\\'~'l'r'5
services to perpelr,lle
11
crime or fraud.
The client insists upon lclJ.dng dclion that the la\vyer
considers repugndot or wHh which the Itlwyer has ,1
fu ndamental d iSt1gn:>ement.
l)
TERlviiNATIONMlTHPRAWAL'
: : ; ' . . (CoJitinueq)
:,
5)
The client fails substantially to fulfill an
obligation to the Idwyer regarding the lawyer's
services and has been given reasonable
warning that the lawyer will withdraw unless
the obligation is fulfilled,
6)
'Ole representdtion will result in an
unreasonable financial burden on the lawyer
or has been rendered unreasonably difficult by
the client.
7)
Other good cause for withdrawal exists,
I-TERMIN.·.ATI.O.. .Ntwr.,TH.:D. RA\i\rA.Y
II,,;
" :,:', (ContmU~(i),
;)", '
C.R.C,P. 121-1-1
WITHDRAWAL FROM LITIGATION lvlA'fTERS
tl)
Motion for Withdrawal
b) Notice of Withdrawal
UNTIL ORDER ON Will lDRt\Wi\l, r.::ONTINUE TO
REPRESENT THE CLIENT
Colo, RPC 1.16(c)
16
[I,: ..
LAW.oEJ;lI.~.,.C.·. E·l\IIl,\.NAGEMENT
o BUSINESS PLAN:
Bank Accounts
Human Resource Contracts
Work Flow Plan
t:l COMPREHENSIVE FILING &
STORAGE SYSTEM:
Active Files
Closed Files
€) CALENDAR
& DOCKET CONTROL SYSTEM:
• More than one system
• More than one person
• Daily routine
!. "LAW ()fFiC;E.M~NAG~.lY.1Elk[
o
·1
CLIENT INFORMATION SYSTEM:
Client index
Conflicts index
• Log of actions in each client matter
Tickler system for events and deadli nes
Time records
17
Communication device
• Not summary fashion
Clltml
Ql:;l:
ldlllSmith
Smith lI.h'l(h~
hWtlln'- I.U111'11\' '. ~IH:!
Ft'o,;
(lli/t15jUI
Hl/1O/1I1
Ul/10/Ul
UJ/:!O/lll
111/21{01
11/~/01
R.':>t,.mh
V.ulllUS td'T!uorw "mrs
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Pn'P"'"c l'rl.·!
Curr JC'o,;lImcnl~
1Q~:anh
11/00/01
Tdl'phllm'l:Unl.
11/09/01
l1/1:!JllI
11/13/01
11/28·12/(iJ/01
12/14/U1
TlJIcrhUlIt'umf
Olike H'nl
fk'Sl.'drdl
Prep. for Court
Cllurl arf'<'drilnll:
Tutul Fl'\~ thi~ P.:noJ:
E-<!'O.!ooo;t.'S
Ihi~
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Sil.·L'C'>J~1
PI'rlll'l1
ICupit:s. phone .hatll\~. JX'SI;JI~c....... ~rclilrl.ll. I'lrkU1l:1 ,),;IIlHl
P~viotl) a.l1.lnw:
Sl!.3f,5.f1(1
Total Due-
Rule 1.5 (among others)
18
fee. Agreeni~nts
Fee agreement should be in writing, especially
with a new client
• Contingent fee MUST be in writing
No benefit to not having a written fee
agreement
Limit scope of representation
[ComIll~nicatjon'():(Fe~··'~asi~1
• With a new client you must give a written
description of fee and expenses - l.5(b)
• This must be done within a reasonable time
after commencing the representation
• Any modification of fee with an old client
mu"st be written - comment, also subject to
RPC 1.8(a)
• Flat fees must be placed in trust and billed
against as earned.
• To be earned, lawyer must convey some benefit
to client.
• Hourly or task-based basis for earning fee.
• Attorney fees are never "non-refundable."
19
r
Must be in writing - Chapter 23.3 of the civil
rules of procedure and Colo. RPC 1.5(c)
,..Signed by BOTH ATrORNEY AND CLIENT
r
IN DUPLICATE so that each has a copy
Charging lien - C R.5. 12-5-119.
Lien filed in court where the action is filed.
Retaining lien - CRS. 12-5-120.
Lien on property lawyer possesses that
belongs to client.
Both are trumped by
Rules of Professional Conduct
r Double-billing for costs and time
,.. Adding a flat percentage to all bills
,.. Taking a note secured by a deed of trust on a
house or other property. Colo. RPC 1.8(a)
r Taking an interest in the property which is the
subject matter of the suit. Colo. RPC 1.8(i)
,.. Client cannot agree to an unreasonable fee
20
Time keeping and/or billing systemsget one
r
- Lawyer cannot withhold services to
coerce payment
Ixrtpofta:t1.t rtovisiOns to Consider
:::~ :,~df;li~~.in.,Fe~.Agr~~r,ll~nt ... ..
-
Are you going to handle appeals? Limit the scope of
employment.
-
Identify the client carefully (Corp.?)
r
Arbitration provisions are favored in Colorado.
-
Are other attorneys going to be working on the case?
-
If you want interest on unpaid balance your agreement
must say so or else no interest.
1ppr6p~r.£loY}~ions}I,1~gl:~eJl1el1t~
,I·
•.
1.
No notice of termination by client can
be required
No limitation prospectively on lawyer's
liability
No statement that fee is nonrefundable
No statement that client gives up right
to the file
No penalty on client for discharging
lawyer
2.
3.
4.
5.
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How to use, how not to use, and
trust account bookkeeping.
[~W1~a.t.~s ~J!~S{~~~?li~h.. ,'I
• Account at an approved institution in
Colorado
• Does not have to be a "COLTAF" account
• Lawyer can have more than one trust
account
• Must be labeled as "trust" or "COLTAF"
E~~~ate~~t",
A lawyer in private practice
who receives advance
payments of fees, expenses or
funds (like settlement
proceeds) entrusted to lawyer's
care.
Colo. RPC 1.15(d)(1).
22
• Commingling is mixing your own funds with
those of a client
• Commingling is prohibited because it puts your client's
(or third party's) funds at risk.
• Who poses a risk to commingled funds?
Your creditors
Your heirs
- Bankruptcy trustee for you
IB~anK£~.~g~~for~USf'~~~~iliill
• Most banks are not charging for trust
accounts
• Lawyer may keep very small amount of
money of his/her own ($5-10) in trust
account for service charge, but no more
• No cushions
I;:.~;· .t~$£f?f~~~taC~·OUl{t.
• Lawyer can NEVER use trust account as
lawyer's personal account.
• What if no client funds in trust account?
- Lawyer still should not use trust account
as a personal account.
- Hiding funds there from the IRS or
others can be criminal and can result in
serious discipline.
23
• Client advances retainer
.. Lawyer must take out earned fees
periodically
• Rule of thumb - every
30 days
I";~ ".. 'Djs bur~ing~l,lnd$''', ' "J
.. Lawyer holds settlement funds in
trust
• When the lawyer knows the funds
are"collected" or the check has
cleared," then the lawyer dish'ibutes
to client and to herself.
U
I~i~p{[~~$ ove.rJ~~4~ i4:~u§(1
• Lawyer must take steps to resolve the
dispute or [worst case] interplead the
funds
• Lawyer may be a fiduciary both to client
and to third person if holding funds for
both
• Lawyer cannot breach duty to either
24
Boold(eeping~tJle 1.1[]
• You must have adequate receipt and
disbu rsement records
~.
- Date, source and description of each
item deposited.
Date, payee and purpose of each
disbursement.
You must have the following:
• A record keeping system that identifies each trust
client.
• Records showing the source of all funds for
deposits for that client.
• Records showing the amount and description of
all withdrawals.
• Records showing the names of those to whom
money was disbursed.
• You must do a trial balance no less than
QUARTERLY of each client ledger.
You must keep retainer agreements or
contingent fee agreements, statements to clients,
bills to clients, payments to experts, reporters,
etc., bank statements, and pre-numbered
cancelled checks and copies of client's files to
understand the financial transactions 7 years
after termination.
'iP
7· J ars
.
~H
25
Ttu~t Accounts
Dutie!,
• {JUT/E:; MAY BE DELEGATED
• lUSl'cJ!',JSIBlun· FOR ACCOUNT
MAY NOT BE DELEGATED
•Appropriate training and
supervision of employees
G-sJ .Accquni·~_ointer.s
Do not pre-sign checks
Receive account statements unopened
Review all cancelled checks and statements
Do not have one person responsible for the entire
trust account. Separate duties.
• The one who writes checks does not balance the trust
account.
I:.; :
~dvaf¢·Con4uctSl
r
Colo. RPC 8.4 & C.R.C.P. 251.5
r
Conduct outside practice of law subject to
attorney discipline
~
Criminal conduct, including domestic violence
• People v. Vall BllsTdrk
• People v. Holt
• People v. Littlefield
26
,--.----.-.----_.-~-----~-
~. Cori,dud'(~ontillued)
Failure to report conviction - ten days
lCKCI'. 251.20(b)1 People P. Hllrl/llm/l,;e
False statements, intentional or with reckless disregard
for the tru th:
Peor/e v. Ko//ljorl/,;el/, 917 P.2d 277 (Colo. [996)
• People u. Hrowl/, 726 P.2d 638 (Colo. 1986)
• People u. Kiely, 968 P.2d 110 (Colo. [998)
• People P. Ri,;lwl, 50 P.3d 938 (Colo.a.p.D.). 2002)
NOT SO HYPOTHETICAL(s)
CRIMINAL CONDUCT
• A. DUTY TO REPORT - 10 DAYS
FOLLOWING CONVICTION/PLEA
• B. DUI-DWAI
,,,;:::, ......
~;.~'~'~
.','
• C. SERIOUS CRIME
·II
,::;.
Rule 251.8 & 251.20
Private COn.dud (continued.)
•t
; " ' ) ' T,'· .:
,. Sexual misconduct:
• People ~/. Lowery
,. Failure to pay child support:
• People v. Greel/
• People v. Hal/ks
r
Petitions for immediate suspension:
• Rule 251.8.5 (amended 2/17/00).
,. 8.4(H) - Don't be mean
27
• Professionalism principles generally require
attorneys to conduct themselves toward clients,
other attorneys, and society as a whole with
integrity, honesty, candor and fairness, respect,
dignity, and courtesy.
• Many issues arise in the course of law practice
which require vigilance on the part of the
practitioner and adherence to principles set forth
in the Rules of Professional Conduct.
AnCillary'Issues
·,.;(~onfj~1.h¢,g)::,.~
.
I
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• An attorney must adhere to truthfulness in
dealings with persons other than clients.
{Colo. RPC 4.1}
An attorney shall treat the rights of third
persons with respect and shall avoid
conduct meant •.... to embarrass, delay, or
burden a third person ..."
{Colo. RPC 4.4}
28
NOT SO HYPOTHETICAL
MISREPRESENTATIONS - District Attorney
goes to homicide crime scene. TIle suspect, a
fugitive, calls and speaks with the police.
Suspect wants an attorney to represent him
during the surrender. Attorney whom suspect
requesl,> to speak to no longer practices law.
Suspect then asks for a public defender. The
district attorney decides to pretend to be the
public defender to expedite the surrender. He
speaks twice by telephone with the suspect who
believes he is talking with a public defender.
Ancillary Issues
'0 (cOl1Jin~~a)'
.,
An allomey shall not Lhreaten, present, or participate in presenting
criminal, .tdminislrdtive, or disdplinary charges to obtain an
ad\'antage in a civil malter. ICulo. RPe 4.5}
An attorney must .1Void sexual relationships with clients and other
forms of sexual misconduct, including harassment.lenlo. RPC
8.4(b), (<II, (g), (hl)
An anomey should disclose the details of representalion when
contacting a person who is not represented by counsel. {Colo. RPC
4.3}
/lltonll!.'! i1 received prh·.lte discipline.. d private censure, for conduct
which included failing tn inform a physician in a telephone call Umt
the aUomt.·y repni'sl'nlcd ,I p.lrly o1d\'crse to Ule physician's patient
(1997).
• (1) Rules governing admission to the Bar
• (2) Colorado Rules of Procedure
regarding:
Attorney Discipline & Disability
Proceedings, Colorado Attorneys'
Fund for Client Protection &
mandatory Continuing Legal
Education & Judicial Education
29
[E
L
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•
.,.
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A.--lJci11~ry IS~l1es(~onfh~ued).
•.. ' ':"":-. . ' >_.
..:=_.;
An attorney may not participate in
the unauthorized practice oflaw.
(Colo. RPC 5.4(a), 5.5j
-_.__._-_._-_...•.._----------,._---,
Practicing With
Professionalism
\ !-
presented by the
Colorado Bar Association
&
Colorado Supreme Court
Attorney Regulation Counsel
30