Colo. RPC 2.3

History

Source: Entire Appendix repealed and readopted April 12, 2007, effective January 1, 2008. COMMENT Definition [1] An evaluation may be performed at the client’s direction or when impliedly authorized in order to carry out the representation. See Rule 1.2. Such an evaluation may be for the primary purpose of establishing information for the benefit of third parties; for example, an opinion concerning the title of property ren- dered at the behest of a vendor for the informa- tion of a prospective purchaser, or at the behest of a borrower for the information of a prospec- tive lender. In some situations, the evaluation may be required by a government agency; for example, an opinion concerning the legality of the securities registered for sale under the secu- rities laws. In other instances, the evaluation may be required by a third person, such as a purchaser of a business. [2] A legal evaluation should be distin- guished from an investigation of a person with whom the lawyer does not have a client-lawyer relationship. For example, a lawyer retained by a purchaser to analyze a vendor’s title to prop- erty does not have a client-lawyer relationship with the vendor. So also, an investigation into a person’s affairs by a government lawyer, or by special counsel employed by the government, is not an evaluation as that term is used in this Rule. The question is whether the lawyer is retained by the person whose affairs are being examined. When the lawyer is retained by that person, the general rules concerning loyalty to client and preservation of confidences apply, which is not the case if the lawyer is retained by someone else. For this reason, it is essential to identify the person by whom the lawyer is re- tained. This should be made clear not only to the person under examination, but also to others to whom the results are to be made available. Duties Owed to Third Person and Client [3] When the evaluation is intended for the information or use of a third person, a legal duty to that person may or may not arise. That legal question is beyond the scope of this Rule. However, since such an evaluation involves a departure from the normal client-lawyer rela- tionship, careful analysis of the situation is re- quired. The lawyer must be satisfied as a matter of professional judgment that making the evalu- ation is compatible with other functions under- taken in behalf of the client. For example, if the lawyer is acting as advocate in defending the client against charges of fraud, it would nor- mally be incompatible with that responsibility for the lawyer to perform an evaluation for others concerning the same or a related transac- tion. Assuming no such impediment is apparent, however, the lawyer should advise the client of the implications of the evaluation, particularly the lawyer’s responsibilities to third persons and the duty to disseminate the findings. Access to and Disclosure of Information [4] The quality of an evaluation depends on the freedom and extent of the investigation upon which it is based. Ordinarily a lawyer should have whatever latitude of investigation seems necessary as a matter of professional judgment. Under some circumstances, however, the terms of the evaluation may be limited. For example, certain issues or sources may be cat- egorically excluded, or the scope of search may be limited by time constraints or the noncoop- eration of persons having relevant information. Any such limitations that are material to the evaluation should be described in the report. If after a lawyer has commenced an evaluation, the client refuses to comply with the terms upon which it was understood the evaluation was to have been made, the lawyer’s obligations are determined by law, having reference to the terms of the client’s agreement and the sur- rounding circumstances. In no circumstances is the lawyer permitted to knowingly make a false statement of material fact or law in providing an evaluation under this Rule. See Rule 4.1. Obtaining Client’s Informed Consent [5] Information relating to an evaluation is protected by Rule 1.6. In many situations, pro- viding an evaluation to a third party poses no significant risk to the client; thus, the lawyer may be impliedly authorized to disclose infor- mation to carry out the representation. See Rule 1.6(a). Where, however, it is reasonably likely that providing the evaluation will affect the cli- ent’s interests materially and adversely, the law- yer must first obtain the client’s consent after the client has been adequately informed con- cerning the important possible effects on the client’s interests. See Rules 1.6(a) and 1.0(e). Financial Auditors’ Requests for Information [6] When a question concerning the legal situation of a client arises at the instance of the client’s financial auditor and the question is referred to the lawyer, the lawyer’s response may be made in accordance with procedures recognized in the legal profession. Such a pro- cedure is set forth in the American Bar Associa- tion Statement of Policy Regarding Lawyers’ Responses to Auditors’ Requests for Informa- tion, adopted in 1975.