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F
ar too many individuals who have legal Rules), the Rules actually encourage pro bono ter expertise is not usually required, noting that
problems cannot afford assistance from representation and should be viewed as a resource [i]n many instances, the required proficiency
a lawyer. In 2008, the Colorado Access rather than a barrier to such representation. is that of a general practitioner.10 With these
to Justice Commission (Commission) guidelines in mind, a well-trained lawyer can
explained that Colorado faces a serious crisis The Three Cs of Pro Bono Work use his most basic analytical skills to ethically
in civil legal representation of the indigent. The concerns lawyers have about pro bono undertake many pro bono activities.
Many Coloradans who need legal assistance representation generally fall into one of three
to secure and maintain healthcare, housing, categories: competence, conflicts, and commu- Conflicts
custody, or other necessities do not receive help nication. However, a close examination of the Another concern is the danger of conflicts.
because there are too few lawyers at Colorado Rules reveals there are sufficient safeguards in Although conflicts of interest can cause trep-
Legal Services, Colorados statewide legal aid place to alleviate each of these areas of concern. idation on the part of even the most eager
program.1 Six years later, the Commission found prospective pro bono lawyer, again the Rules
the situation had not improved significantly.2 It Competence provide appropriate safeguards.
made several recommendations, including taking It is a lawyers ethical duty to provide a client In addition to a duty to avoid any current
[a]dditional measures to encourage law firms, competent representation. Competent repre- conflicts of interest, lawyers owe an ethical
solo practitioners, government legal offices, and sentation requires the legal knowledge, skill, duty to former clients they or their law firm
in-house counsel to provide, or expand their thoroughness and preparation reasonably have served.11 Essentially, the Rules protect
provision of, pro bono services.3 necessary for the representation.6 In daily against a lawyer obtaining confidential factual
This problem is not limited to Colorado. practice, most lawyers take careful measures to information in the course of representation
The American Bar Association (ABA) has noted abide by this ethical standard. Often, however, and then using that same information to the
that in some jurisdictions, more than eighty the pro bono work that is needed is not in disadvantage of another client.12 This concept
percent of litigants in poverty are unrepresented the field in which an interested attorney has creates apprehension for lawyers who worry
in matters involving basic life needs. . . .4 The expertise. In such cases, a lawyer should look that even consulting with a person during a pro
ABA recommended, among other approaches, to the Rules for guidance. bono activity could later disqualify them or their
that [l]egal aid and pro bono efforts must be The Rules recognize and embrace the basic firm from representing others.
expanded, fully-funded, and better-promoted analytical training that lawyers undergo to The Rules caution that to avoid obtaining
across the country.5 become lawyers. A Rule comment notes that disqualifying information, a lawyer should limit
One of the barriers to expanding pro bono [p]erhaps the most fundamental legal skill a consultation to only such information as
service is that many lawyers have concerns about consists of determining what kind of legal reasonably appears necessary for the consulta-
the ethical risks and ramifications involved in problems a situation may involve, a skill that tion.13 Simply obtaining information necessary
providing such representation. This article aims necessarily transcends any particular specialized to determine eligibility for pro bono services
to alleviate some of those concerns. While it is knowledge.7 This comment acknowledges that typically does not trigger disqualification for
true that lawyers owe many obligations under many times a lawyers best skill is to sit and future representation of others.14 Moreover, even
the Colorado Rules of Professional Conduct (the listen to a potential client and help the person if an agency sponsoring the pro bono activity
JOHN H. TATLOCK
Epstein Paerno, LLP
730 17TH Street, Suite 230
On his selection as one of Denver, Colorado 80202
Super Lawyers Top 100 6161 South Syracuse Way, Suite 370
Greenwood Village, Colorado 80111
Colorado Attorneys 303-893-3111
www.EPFamilyLawAorneys.com
N OTE S
1. Colorado Access to Justice Commission, The provide access and address legal needs. Id. 20. Colo. RPC 1.4(b).
Justice Crisis in Colorado: A Report on the Civil 6. Colo. RPC 1.1. 21. Colo. RPC 1.2(c) (A lawyer may limit
Legal Needs of the Indigent in Colorado at 1 the scope or objectives, or both, of the
7. Colo. RPC 1.1, cmt. [2].
(Jan. 2008), www.cba.cobar.org/repository/ representation if the limitation is reasonable
Access%20to%20Justice/08ATJ_FULLReport. 8. See Colo. RPC 1.18(a)(b). Comments [1]
under the circumstances and the client gives
pdf. and [2] provide helpful guidance to lawyers
informed consent. A lawyer may provide limited
who have a short-term consultation with an
2. Colorado Access to Justice Commission, representation to pro se parties as permitted
individual considering legal services. While that
Justice Crisis in Colorado 2014: Report on Civil by C.R.C.P. 11(b) and C.R.C.P. 311(b).).
person is a prospective client, rather than a
Legal Needs in Colorado at 1 (Feb. 2014), www. 22. See CBA Formal Ethics Op. 101: Unbundling/
client, much of the ethical guidance applicable
cba.cobar.org/repository/Justice%20Crisis%20 Limited Scope Representation (amended May 21,
to clients (e.g., concerning confidentiality and
2014%20text.pdf. 2016), www.cobar.org/Portals/COBAR/Repository/
conflicts) also applies to prospective clients.
3. Id. ethicsOpinions/FormalEthicsOpinion_101.
9. Colo. RPC 1.1, cmt. [1].
4. See ABA Commission on Future of Legal pdf?ver=2017-03-31-144456-447.
10. Id.
Services, Report on the Future of Legal 23. See Colo. RPC 1.4(a)(2) (A lawyer shall . . .
Services in the United States at 1 (2016), www. 11. See generally Colo. RPC 1.7, 1.9, 1.10. reasonably consult with the client about the
americanbar.org/content/dam/aba/images/ 12. Id. means by which the clients objectives are to be
abanews/2016FLSReport_FNL_WEB.pdf. 13. Colo. RPC 1.18, cmt. [4]. accomplished.).
5. Id. at 54. The ABAs Commission also 14. See CBA Formal Ethics Op. 117: Ethical 24. See CBA Formal Ethics Op. 101, supra note
explains that the ABA should encourage the Responsibilities of Attorneys in Legal Services 22 at 4 (citing Colo. RPC 1.2(c)).
maintenance and development of effective and Pro Bono Programs Concerning Prospec- 25. CRCP 11(b). See also CRCP 311(b) (contain-
programs to provide pro bono representation tive Clients at 4-421 (June 16, 2017), www.cobar. ing same requirement).
and other affordable sources of professional org/Portals/COBAR/repository/ethicsOpinions/ 26. See CBA Formal Ethics Op. 101, supra note
legal services for low-income citizens. Id. FormalEthicsOpinion_117_2011.pdf. 22 at 12 (discussing Colo. RPC 3.4(c)).
Further, the ABA Commission suggests that
15. Id. at 4-423. 27. Colo. RPC 6.1.
[c]ourts should adopt rules that encourage
pro bono representation by lawyers, such as 16. Colo. RPC 6.5(a). 28. Colorado Attorney Oath of Admission,
emeritus rules, CLE credit for service, reporting 17. Colo. RPC 6.5(a)(1) and (2); Colo. RPC www.coloradosupremecourt.com/Current%20
obligations, court processes that prioritize 6.5(b). Lawyers/Oath.asp. See also Colo. RPC 6.1, cmt.
service and minimize time required for pro 18. See Colo. RPC 1.4, cmts. [1] and [6]. [1].
bono lawyers/cases, and other measures that 19. See Colo. RPC 1.4(a).