New Authority: Colorado Bar Ethics Committee Opinion 146
Author: Dr. Michael H. Hoeflich
This article is featured in Volume 4, Number 4 of the Legal Ethics and Malpractice Reporter.
One of the most frequently heard complaints from lawyers, young and old, is that they work far too much. Large firms may expect lawyers to bill anywhere from 2,000 to 2,500 hours per year. Legal services lawyers and public defenders often carry enormous caseloads because of budgetary constraints. From the human perspective, these overwhelming workloads are untenable. They can destroy lawyers’ health, families, and peace of mind. Working long hours for long periods also can affect a lawyer’s ability to perform to a standard required under the Rules of Professional Conduct. It is this problem that is addressed in Colorado Bar Ethics Committee Opinion 146.
In November 2022, the Colorado Bar Ethics Committee issued the opinion titled, “A Lawyer’s Duty to Maintain an Appropriate Workload.” The opinion provides a well-reasoned account of how a number of the Rules of Professional Responsibility regulate workload:
Colorado’s Rules of Professional Conduct (the Rules or Colo. RPCs) impose the duties of competence, diligence, communication, and appropriate supervision. These duties affirmatively require lawyers to manage their workload to ensure proper client representation. Lawyers who manage or supervise lawyers – whether in a private law firm or other comparable setting – are also obligated to make reasonable efforts to ensure that subordinates’ workloads are suitably controlled…
Determining when a workload is excessive under the rules of professional conduct is necessarily fact specific. This opinion discusses some considerations relevant to that inquiry but does not attempt to draw, nor should it be understood to offer, any bright-line rules. This opinion also presents opinions from other jurisdictions and the American Bar Association (ABA) addressing the risks of excessive workloads for public defenders, prosecutors, legal aid lawyers, and private practitioners. Those authorities uniformly agree that a lawyer’s workload must be such that the lawyer can competently and diligently handle the matters assigned and recognize the supervising lawyer’s concomitant obligations in this regard.
The fundamental basis for the Colorado opinion is that Rule 1.1 imposes a requirement of competence on all lawyers and that Rules 5.1-5.3 require that supervising lawyers must make “reasonable efforts” to ensure that those they supervise are complying with the ethics rules. The combination of Rule 1.1 and Rules 51.–5.3 imposes an ethical responsibility for individual lawyers to ensure their own competence in their practice and for supervising lawyers to ensure this competency level in the lawyers that they supervise.
The Opinion also notes that an “unmanageable workload” may create a concurrent conflict of interest for the lawyer trying to do too much in too little time:
An unmanageable workload may create a concurrent conflict of interest under Colo. RPC 1.7(a)(2) (“A concurrent conflict of interest exists if . . . there is a significant risk that the representation of one of more clients will be materially limited by the lawyer’s responsibilities to another client[.]”); see also In re Edward S., 173 Cal. App. 4th 387, 414 (Cal. App. 2009) (“[A] conflict of interest is inevitably created when [a lawyer’s excessive workload forces the lawyer] to choose between the rights of the various [clients] he or she is defending.”). Whether such a “significant risk” is created by a lawyer’s workload necessarily requires assessing not just how many matters for which a lawyer is responsible, but also the complexity of those matters, whether the lawyer is handling the representation solely or jointly, the lawyer’s familiarity with the area of the law, any limitations discussed with the client, any prior representation of the client by the lawyer, and any other factors relevant to determining whether each client is being represented competently and diligently.
The Opinion then goes on to discuss its applicability to lawyers in various roles in the profession and provides a plethora of citations and examples.
Opinion 146 concludes:
All lawyers “have an ethical obligation to control their workloads so that every matter they undertake will be handled competently and diligently.” ABA Opinion 06-441, p. 4; see also Colo. RPC 1.3, cmt. . This duty extends beyond the individual lawyer to supervisory and managerial lawyers within the firm. This duty applies equally to private and public sector lawyers. In Colorado, this obligation is underpinned by the requirements of competence, diligence, proper communication and (where applicable) sufficient supervision of subordinate lawyers and non- lawyer assistants as part of every lawyer’s ethical duties.
Colorado Opinion 146 is timely and useful. It reminds us all that an “unmanageable workload” can not only destroy lawyers’ health and families, but also lead to serious ethical problems. It is worth reading.
>>READ THE FULL ISSUE OF LEMR, Vol. 4, No. 4
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