May a Colorado legal-services or pro bono program screen and refer an applicant whose interests conflict with an existing client's interests?
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This page answers the general question as of 2007. Ask about yours and see what the current Colorado Rules of Professional Conduct say for your facts, with citations.
Plain-English summary
Opinion 117 addresses intake by Colorado Legal Services and bar-sponsored pro bono programs when adverse people seek assistance from the same system. A screening interview limited to conflicts, financial eligibility, substantive eligibility, and legal needs ordinarily does not itself create an attorney-client relationship. The intake lawyer or supervising lawyer must ensure that only information reasonably necessary for those purposes is requested and must make clear that representation has not begun.
The person is nevertheless a prospective client under Rule 1.18. Intake information may not be used or revealed as Rule 1.18(b) provides, and information that could be significantly harmful can create disqualification in the same or a substantially related matter. The opinion concludes that limited eligibility and conflict information ordinarily will not be significantly harmful, and Rule 1.18(d) permits continued representation through informed written consent or timely screening when no more information than necessary was received.
The program may refer the adverse applicant while continuing for the existing client when the applicant disclosed only limited intake information, the program and referral lawyer are not one firm, the program's lawyer for the existing client cannot access the applicant's information, and the referral lawyer cannot access information the program holds about the adverse existing client. If those conditions fail, both people should be referred elsewhere. A program may also provide malpractice coverage, litigation-cost reimbursement, or a modest fee to volunteer counsel if Rules 1.6, 1.7, and 1.8(f) are satisfied.
In practice
Under Opinion 117, the intake process is designed to preserve access to representation without giving one applicant an automatic conflict advantage. The ethical result depends on limiting intake, clearly describing its non-representational purpose, applying Rule 1.18, keeping the program and referral counsel separate for Rule 1.10, and enforcing screens that prevent information flow between adverse sides.
Common questions
Q: Does a legal-aid intake interview automatically create an attorney-client relationship?
A: No. The opinion concludes that a limited interview for eligibility, conflicts, and legal needs ordinarily does not establish representation when the applicant is told that representation begins only after acceptance.
Q: May intake continue after a possible conflict appears?
A: Yes, but only to gather the limited information needed to determine eligibility and make a referral. The intake process should not solicit more information than reasonably necessary.
Q: May the program keep representing its existing client after referring the adverse applicant?
A: Yes, when the opinion's four safeguards are met, including separate-firm status and screens preventing each lawyer from accessing the adverse person's information.
Q: What happens if the screen or limited-intake safeguards fail?
A: The opinion concludes that both the existing client and the adverse applicant should be referred to other counsel.
Background and rules framework
The opinion applies Colorado RPC 1.18 to prospective clients, Rules 1.7, 1.9, and 1.10 to current-, former-, and imputed conflicts, Rule 1.6 to protected client information, and Rule 1.8(f) to financial assistance or compensation supplied to volunteer counsel. It also relies on the distinction between eligibility intake and legal advice that creates an attorney-client relationship.
Citations and references
Rules of Professional Conduct:
- Colo. RPC 1.18 (duties to prospective clients and screening)
- Colo. RPC 1.7, 1.9, and 1.10 (current, former, and imputed conflicts)
- Colo. RPC 1.6 (confidentiality)
- Colo. RPC 1.8(f) (compensation from a source other than the client)
Cases:
- People v. Bennett, 810 P.2d 661 (Colo. 1991), formation of an attorney-client relationship
- Cole v. Ruidoso Municipal Schools, 43 F.3d 1373 (10th Cir. 1994), prospective-client information and disqualification
- Westinghouse Electric Corp. v. Kerr-McGee Corp., 580 F.2d 1311 (7th Cir. 1978), confidential information from a prospective client
Other opinions cited:
- ABA Formal Opinion 90-358: information from a prospective client
- CBA Formal Opinions 57 and 68: conflicts and multiple representation
- Oregon Formal Opinion 2005-138: prospective clients in legal-services intake
See also
- ABA Formal Op. 492: Obligations to Prospective Clients
- CBA Formal Op. 68: Multiple Representation Conflicts
- CBA Formal Op. 135: Joint Representation
Source
- Landing page: https://www.cobar.org/ethicsopinions
- Original PDF: Colorado Formal Ethics Opinion 117
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