What Every Client Should Know About Legal Ethics

November 14, 2011

By: John M. Tanner

Have you ever wondered what ethical obligations lawyers owe their clients? Ethical issues came to the forefront for Colorado lawyers when the Colorado Supreme Court adopted the Colorado Rules of Professional Conduct, (effective in 1993), and Colorado lawyers had to learn a whole new set of ethical rules. Colorado's rules of legal ethics are more protective of clients than almost any other state's. The Rules are both written and enforced (in lawyer disciplinary or "grievance" proceedings) by the Colorado Supreme Court. This article introduces clients to some of the more important issues.

The Client-Lawyer Relationship: The Rules recognize that the client establishes the objectives for the lawyer's representation. After consulting with the client, the lawyer may then determine the means of pursuing these objectives. There are a few limits on the client's choice of objectives. For example, a client may not ask a lawyer to violate the Rules or other law, and a lawyer may not counsel or assist a client in committing a crime or fraud (but may discuss consequences of the client's conduct). Some of lawyers' ethical duties to their clients are discussed below. Other important duties include competence, diligence, communication, and proper handling of client funds and legal fees.

Confidentiality and Disclosure: Lawyers' general obligations of confidentiality to clients are probably stronger than ever, but so are lawyers' disclosure obligations in court cases. All information relating to representation of a client is now presumed confidential. The only exceptions are for disclosures expressly or implicitly authorized by the client, information necessary to prevent a crime the client intends to commit, and information necessary to use in proceedings concerning the lawyer's representation of the client. The Rules also impose disclosure requirements which may outweigh the confidentiality obligation in some circumstances. For example, certain necessary information must be disclosed in court proceedings, even if the client would prefer not to disclose. Both Federal and Colorado courts have recently broadened their disclosure requirements, requiring both lawyers and clients to disclose relevant facts and documents in court proceedings.

Conflicts of Interest: A law firm's duty of loyalty to existing clients frequently prevents the firm from taking on new work. A firm typically cannot represent multiple clients with adverse interests in the same case or transaction. There are some circumstances in which a potential or apparent conflict of interest is, nonetheless, not likely to harm either client. In those circumstances, the firm may consult with each affected client, disclosing the circumstances creating an apparent or potential conflict, and requesting the client's consent to representation under those circumstances. Also, a firm's continuing duty of confidentiality to former clients often requires that it not represent a party adverse to a former client in a related matter, unless the former client consents after consultation.

Contacts with Third Parties: While representing a client in a matter, a lawyer generally may not discuss the matter (orally or in writing) with a party represented by another lawyer in the matter, unless the other lawyer consents. The Rules also limit what lawyers can say to third parties who are not represented by counsel.

Advertising and Solicitation: As you may have noticed, lawyer advertising is far more prevalent than it once was. This is because the U.S. Supreme Court held the old rules, barring or severely restricting lawyer advertising, were an unconstitutional infringement on lawyers' freedom of speech. The Rules still prohibit false or misleading statements in lawyer advertising and solicitation. Also, in-person solicitation of new clients is prohibited in many circumstances.

The Lawyer as Advisor: The new Rules recognize lawyers frequently are called on to advise their clients. Lawyers are to "exercise independent professional judgment and render candid advice." In doing so, lawyers may advise not only on the law but may also refer to relevant moral, economic, social and political factors. Lawyers also should advise clients of alternative forms of dispute resolution which might reasonably be pursued in attempting to resolve disputes which may involve litigation.

As one might expect from lawyers, the Rules are full of nuances on these and other subjects. Many additional rules apply in specific situations, such as litigation matters. We always strive to represent our clients in an ethical and professional manner.

This Article is published for general information, not to provide specific legal advice. The application of any matter discussed in this article to anyone's particular situation requires knowledge and analysis of the specific facts involved.

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Comments or inquiries may be directed to:

John M. Tanner