Foundations of a … misunderstanding about what an ethics opinion is supposed to be?

So, I will admit from the jump that I am seriously torn about this post. I am a strident believer that the best ethics opinions are practical in a number of respects and that they have to be to be realistic in terms of helpfulness. An ethics opinion that does little more than offer a technical and limited answer to a complicated question of ethics can often be less helpful than silence on the issue involved.

But, at the same time, an ethics opinion really ought to be an opinion that focuses on answering an actual question posed by a lawyer about a situation in which navigating the bounds of what to do, or not do, is circumscribed by the ethics rules of a particular jurisdiction.

An ethics opinion issued by a state bar, or similar group, shouldn’t try to be a law school case book nor should it try to be an exercise in giving comprehensive legal advice to lawyers that goes well beyond discussion of the ethics rules and into the realm of pure law, including contract law.

But, torn as I am about it, I can’t manage to not turn my attention to “Foundations of a Fee Agreement” which the Colorado Bar Association Ethics Committee put out as CBA Ethics Opinion 143. This 26-page treatise, accompanied by 6 pages of appendices with checklists and resources, is not an ethics opinion in any realistic sense of those words.

It doesn’t even pretend to answer a question posed by anyone. Instead, in its “Introduction and Scope” section, it simply starts things off by saying:

This opinion examines a lawyer’s ethical obligations and best practices for fee agreements.
For purposes of this opinion, best practices are those practices which may be beneficial to the lawyer and client, and which the Committee encourages lawyers to consider, but are not ethical obligations pursuant to the Colorado Rules of Professional Conduct, nor are these best practices intended to establish the standard of care. This opinion addresses the foundational components of a fee agreement. Depending on the lawyer’s practice area and facts of the legal matter, additional provisions in a fee agreement may be beneficial, but are beyond the scope of the foundational focus of this opinion.

This kind of opening should prompt an editor with a good red pen to make a margin note along the lines of “Really, then why are we doing this? What are we doing this for?”

The opinion then includes a “Syllabus” section. Literally. That word is traditionally defined to mean “an outline of the subjects in a course of study or teaching,” It then proceeds to not exactly offer that in the section in question. Instead, this section further undermines the notion that the guidance being offered should be coming in the form of an ethics opinion at all:

The Colorado Rules of Professional Conduct (Colo. RPCs or the Rules) “are rules of
reason.” While some Rules are cast as imperatives, others are permissive and define areas where the lawyer has discretion. Fee agreements are one area where a lawyer has discretion because the Rules only require a written communication under certain circumstances, but do not specifically require a fee agreement. The Committee encourages lawyers to use a written fee agreement, however, because such a document is an opportunity for a lawyer to establish client expectations regarding the representation, including: client identity, the scope of the representation, communication, other professionals who may work on the case, file maintenance and return, issues unique to the representation, termination of the lawyer-client relationship, and of course, the terms of the fee arrangement.

I mean, rev up that red pen again, right? Now, in fairness, where this document discusses what Colorado’s rules require, it certainly provides a bucket load of accurate information.

It points out that Colorado 1.5(b) requires a lawyer who hasn’t regularly represented a client previously to communicate the basis or rate of the fees and expenses to the client in writing within a reasonable time of the commencement of the representation. It also accurately explains what 1.5(c) requires for contingent fee agreements and what Colorado’s RPC 1.5(h) requires of flat fee agreements. It even remembers to emphasize that all fee agreements still have to comply with the reasonableness requirement of RPC 1.5(a). It accurately explains that RPC 1.2(c) allows a lawyer to limit the scope of the representation and mentions what a fee agreement can say to comply with one aspect of RPC 1.15’s requirements for depositing unearned fees into trust. It also discusses ways an engagement letter can be used to be helpful in potential compliance with several other rules.

But, in the end, the Conclusion of the document once more undercuts the idea that what this thing is is an ethics opinion.

Many clients have never worked with a lawyer before. The written fee agreement can be
an integral part of establishing a strong lawyer-client relationship. Best practices are to go beyond addressing the basic fee arrangement with the client and to include the foundational elements discussed in this opinion.

There is quite literally nothing to disagree with in the three sentences just quoted above. But I don’t think I’m only being pedantic in saying this document should be called something else and issued by some other committee or section of the Colorado Bar Association. Just not its ethics committee. A short-ish review of the CBA website tells me there are an array of bodies that could have put this treatise out as a “white paper” or other practice resource, like the CBA Lawyer’s Professional Liability committee, or the CBA Modern Law Practice Initiative, or the CBA Solo and Small Firm Practice section.

In fact, if it’s not too late and you are reading this with any influence at the Colorado Bar Association, give this some second thought and rescind it as an ethics opinion and, instead, have it put up as a member resource promulgated by one of those other more appropriate bodies of the CBA.

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