Colo. RPC 5.3

History

Source: Entire Appendix repealed and readopted April 12, 2007, effective January 1, 2008; Comment amended, effective April 6, 2016. COMMENT [1] Paragraph (a) requires lawyers with managerial authority within a law firm to make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that nonlawyers in the firm and nonlawyers out- side the firm who work on firm matters act in a way compatible with the professional obliga- tions of the lawyer. See Comment [6] to Rule 1.1 (retaining lawyers outside the firm) and Comment [1] to Rule 5.1 (responsibilities with respect to lawyers within a firm). Paragraph (b) applies to lawyers who have supervisory au- thority over such nonlawyers within or outside the firm. Paragraph (c) specifies the circum- stances in which a lawyer is responsible for the conduct of such nonlawyers within or outside the firm that would be a violation of the Rules of Professional Conduct if engaged in by a lawyer. [2] Lawyers generally employ assistants in their practice, including secretaries, investiga- tors, law student interns, and paraprofessionals. Such assistants, whether employees or indepen- dent contractors, act for the lawyer in rendition of the lawyer’s professional services. A lawyer must give such assistants appropriate instruc- tion and supervision concerning the ethical as- pects of their employment, particularly regard- ing the obligation not to disclose information relating to representation of the client, and should be responsible for their work product. The measures employed in supervising nonlawyers should take account of the fact that they do not have legal training and are not subject to professional discipline. Nonlawyers Outside the Firm [3] A lawyer may use nonlawyers outside the firm to assist the lawyer in rendering legal services to the client. Examples include the re- tention of an investigative or paraprofessional service, hiring a document management com- pany to create and maintain a database for com- plex litigation, sending client documents to a third party for printing or scanning, and using an Internet-based service to store client infor- mation. When using such services outside the firm, a lawyer must make reasonable efforts to ensure that the services are provided in a man- ner that is compatible with the lawyer’s profes- sional obligations. The extent of this obligation will depend upon the circumstances, including the education, experience and reputation of the nonlawyer; the nature of the services involved; the terms of any arrangements concerning the protection of client information; and the legal and ethical environments of the jurisdictions in which the services will be performed, particu- larly with regard to confidentiality. See also Rules 1.1 (competence), 1.2 (allocation of au- thority), 1.4 (communication with client), 1.6 (confidentiality), 5.4(a) (professional indepen- dence of the lawyer), and 5.5(a) (unauthorized practice of law). When retaining or directing a nonlawyer outside the firm, a lawyer should communicate directions appropriate under the circumstances to give reasonable assurance that the nonlawyer’s conduct is compatible with the professional obligations of the lawyer. [4] Where the client directs the selection of a particular nonlawyer service provider outside the firm, the lawyer ordinarily should agree with the client concerning the allocation of re- sponsibility, as between the client and the law- yer, for the supervisory activities described in Comment [3] above relative to that provider. See Rule 1.2. When making such an allocation in a matter pending before a tribunal, lawyers and parties may have additional obligations that are a matter of law beyond the scope of these Rules. ANNOTATION Law reviews. For article, ‘‘The Duty of Loy- alty and Preparations to Compete’’, see 34 Colo. Law. 67 (Nov. 2005). For article, ‘‘Inves- tigative Tactics: They May Be Legal, But Are They Ethical?’’, see 35 Colo. Law. 43 (Jan. 2006). For article, ‘‘The New Rules of Profes- sional Conduct: Significant Changes for In- House Counsel’’, see 36 Colo. Law. 71 (Nov. 2007). For article, ‘‘Ethics in Family Law and the New Rules of Professional Conduct’’, see 37 Colo. Law. 47 (Oct. 2008). For article, ‘‘Colorado Considers ABA’s Ethics 20/20 Proj- ect and Amends Rules of Professional Con- duct’’, see 45 Colo. Law. 41 (Nov. 2016). This rule does not apply to attorney spe- cial advocates. In re Redmond, 131 P.3d 1167 (Colo. App. 2005) (decided prior to 2007 repeal and readoption of the Colorado rules of profes- sional conduct). Attorney violated section (b) by failing to supervise non-attorney employee’s work on a bankruptcy case to ensure that it was sufficient to satisfy his professional obligations and to generally be aware of the work the employee was doing regarding other matters. People v. Calvert, 280 P.3d 1269 (Colo. O.P .D.J. 2011). Trial court erred in ruling that the Uni- form Debt-Management Services Act, part 2 of article 14.5 of title 12, regulates nonlawyer assistants in conflict with this rule. The rule requires that an attorney provide a nonlawyer assistant meaningful instruction and supervi- sion. Likewise, the legal services exemption from regulation under the Act covers only nonlawyer assistants employed by a licensed attorney providing debt-management services in an attorney-client relationship. A nonlawyer as- sistant must act on behalf of an attorney to be covered under either the rule or the legal ser- vices exemption of the Act. Coffman v. Wil- liamson, 2015 CO 35, 348 P.3d 929. Conduct violating this rule in conjunction with other disciplinary rules is sufficient to justify disbarment. People v. Calvert, 280 P.3d 1269 (Colo. O.P .D.J. 2011).