What must Colorado legal aid lawyers do when their program loses funding and they can no longer represent all their clients?
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This page answers the general question as of 1982. Ezel answers yours: whether it's allowed on your facts, under the current rules of professional conduct in your state, with citations.
Plain-English summary
Opinion 59 (adopted January 23, 1982; addendum issued 1995) responded to the threatened elimination or sharp reduction of federal Legal Services Corporation funding for civil legal aid to the poor. The Committee, in general agreement with ABA Formal Opinion 347, addressed the ethical duties of legal services program management and staff lawyers facing defunding, and the responsibility of the broader bar. The governing premise under the Code of Professional Responsibility was that a lawyer must act competently, avoid neglect, and represent clients zealously, and that a legal services program's primary responsibility runs to its existing clients.
On preparation and intake, the Committee concluded that while future funding remained unclear there was no duty to decline representation, but once the extent of the reduction became reasonably evident, lawyers would be required to decline new representation to avoid prejudice to existing clients. Required steps included promptly notifying existing and new clients of the situation and its risks, implementing a system of priorities (with existing clients given priority), fully informing the local courts, and making reasonable efforts to obtain substitute counsel. On withdrawal, the Committee concluded that a remaining lawyer left with more matters than can be handled competently faces violation of the competence and non-neglect rules and may seek mandatory withdrawal under DR 2-110(B)(2) or permissive withdrawal under DR 2-110(C)(2); and that a departing lawyer who is no longer compensated has "other good cause for withdrawal" under DR 2-110(C)(6). In all cases, the lawyer must satisfy DR 2-110(A)(2) by taking reasonable steps to minimize foreseeable prejudice (timely notice, advising on deadlines and alternatives such as mediation, small claims, or proceeding pro se, and delivering the client's papers) and must obtain tribunal permission where local court rules require it. The Committee relied on Anderson v. District Court, 629 P.2d 603 (Colo. 1981), where the Colorado Supreme Court permitted withdrawal after the lawyer complied with the notice and anti-prejudice requirements.
On new cases, the Committee concluded that once staffing reductions make it impossible to serve existing clients, new matters generally should not be accepted unless extraordinary circumstances in the interests of justice (such as urgent matters risking irreparable injury) compel representation, exercising care not to leave an indigent client worse off by taking a case the lawyer must later abandon. Finally, drawing on EC 2-25, the Committee concluded that every Colorado lawyer shares responsibility to help fund existing legal services programs and to provide free legal services to clients who would otherwise be served, and it encouraged the bar and the courts to coordinate continued representation.
Currency note
This opinion was issued in 1982 under the former Colorado Code of Professional Responsibility, before the Colorado Rules of Professional Conduct took effect on January 1, 1993, and before Colorado's 2008 revisions to those rules. A 1995 addendum mapped the opinion to current Rules including Rule 1.1 (competence), Rule 1.3 (diligence), Rule 1.16 (declining or terminating representation), Rule 5.4 (professional independence), Rule 6.1 (pro bono service), and Rule 6.2 (accepting appointments). The withdrawal rules and local court procedures the opinion cites have since changed. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.
Common questions
Q: Did a Colorado legal aid program have to stop taking cases as soon as funding was threatened?
A: No, not immediately. The opinion concluded that while future funding remained unclear there was no duty to decline representation, but once the extent of the reduction became reasonably evident, lawyers had to decline new matters to avoid prejudicing existing clients.
Q: Could an overloaded remaining legal aid lawyer withdraw from cases?
A: Yes, under the withdrawal rules. The opinion concluded that a lawyer who could not competently handle the increased caseload faced violating the competence and non-neglect rules and could seek mandatory withdrawal under DR 2-110(B)(2) or permissive withdrawal under DR 2-110(C)(2), while taking steps to minimize prejudice and obtaining tribunal permission where required.
Q: Could a departing lawyer who was no longer being paid withdraw?
A: Yes. The opinion concluded that a legal services lawyer who diligently prepared for the loss of funding but faced carrying a substantial caseload without salary had "other good cause for withdrawal" under DR 2-110(C)(6), and that the program and the departing lawyer shared responsibility to meet the withdrawal requirements.
Q: Did other Colorado lawyers have any responsibility when legal aid lost funding?
A: Yes, as an ethical aspiration. The opinion concluded, relying on EC 2-25, that every Colorado lawyer shares responsibility to help obtain funds for legal services programs and to provide free legal services to clients who would otherwise be served.
Background and rules framework
The opinion interpreted the then-governing Colorado Code of Professional Responsibility, principally DR 2-110 (withdrawal), DR 6-101 (competence and non-neglect), and DR 5-105 (independent judgment), with the aspirational pro bono principle of EC 2-25 and EC 2-29. The 1995 addendum and the modern Model Rules analogs are Rule 1.16 (declining or terminating representation), Rule 1.1 (competence), Rule 1.3 (diligence), Rule 6.1 (pro bono public service), and Rule 6.2 (accepting appointments).
Citations and references
Rules of Professional Conduct:
- Colo. Code of Professional Responsibility DR 2-110, DR 6-101, DR 5-105; EC 2-25, EC 2-29 (governing rules at issuance)
- Colo. RPC 1.16 / Model Rule 1.16 (declining or terminating representation; current analog)
- Colo. RPC 1.1, 1.3 / Model Rules 1.1, 1.3 (competence; diligence)
- Colo. RPC 6.1, 6.2 / Model Rules 6.1, 6.2 (pro bono service; accepting appointments)
Statutes:
- Legal Services Corporation Act, 42 U.S.C. section 2996a-k (federal funding of civil legal services)
Cases:
- Anderson v. District Court of Larimer County, 629 P.2d 603 (Colo. 1981), withdrawal permitted after notice and steps to avoid prejudice
- Lefcourt v. Legal Aid Society, 445 F.2d 1150 (2d Cir. 1971), legal services program treated as the retained firm
Other opinions cited:
- ABA Formal Op. 347 (1981): ethical responsibilities of legal services lawyers on loss of funding
- ABA Formal Op. 334 (1974); ABA Informal Ops. 1359 (1976), 1428 (1979): priorities and continued representation
See also
- CBA Formal Op. 128: Ethical Duties When a Lawyer Cannot Contact a Client
- CBA Formal Op. 104: Surrender of the File on Termination
- ABA Formal Op. 470: Judicial Encouragement of Pro Bono Service
Source
- Landing page: https://www.cobar.org/ethicsopinions
- Original PDF: https://www.cobar.org/Portals/COBAR/repository/ethicsOpinions/FormalEthicsOpinion_59_2011.pdf
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