Position
Statement on Attorney-Client Relationship
SUMMARY
OF POSITION
Applying
the Rules of Professional Conduct, together with historical practices,
the Office of Legislative Legal Services takes the position that the
legislative lawyer maintains an attorney-client relationship with the
legislature, as an organization, and not with each legislator.
The legislative lawyer is bound to observe requirements that a
communication with a legislator be held confidential. However, a
legislative lawyer should not be expected to engage in conduct that
affects the legislative lawyer's allegiance to the legislature.
The duties
of legislative lawyers employed by the Office of Legislative Legal
Services and the General Assembly have changed and grown in recent
years. The formal duties of the nonpartisan office relate to bill
drafting, statutory publication, review of executive agency rules,
review and comment on proposed initiative measures, and provision of
general legal services as in-house counsel for the General Assembly.
Legislative lawyers have been called upon to play the role of legal
counselor in addition to the traditional roles of legal wordsmith and
researcher.
What, exactly, is the attorney-client relationship? Generally, the
attorney-client relationship is established when it is shown that a
client seeks and receives the advice of a lawyer on the legal
consequences of the client's past or contemplated actions. People v.
Bennett, 810 P.2d 661 (Colo. 1991). The Colorado Rules of Professional
Conduct (appendix to chapters 18 to 20, Colorado Court Rules, Volume
12, Colorado Revised Statutes) describe the professional responsibility
of all Colorado attorneys and contain principles for guiding a lawyer
in determining whether an attorney-client relationship exists. A
legislative lawyer is an attorney-at-law required by law to be licensed
in Colorado and is subject to the Rules. The difficulty in applying the
Rules to legislative lawyers is rooted in the different roles of
legislative and private lawyers. Specifically, a legislative lawyer's
obligations and duties in the legislative employment setting are
distinguishable from those of a lawyer engaged in representing a
private client. The expectation is that a legislative lawyer works for
all sides of a controversy; there is no private gain for the client in
the usual sense; and conflicts are resolved in the legislative, not the
judicial process. In Colorado, legislative lawyers are governmental
lawyers performing several distinct services for legislators: The
lawyer is a legislative drafter, a provider of advice through legal
research and opinions, "in-house" counsel for the legislature, members,
legislative committees, and other legislative service agencies, and
representational counsel in legal disputes involving the legislature.
Applying the Rules of Professional Conduct, together
with historical practices, the Office of Legislative Legal Services
takes the position that the legislative lawyer maintains an
attorney-client relationship with the legislature, as an organization,
and not with each legislator. However, a legislative lawyer
may also represent any legislator, employee, or other constituent of
the legislative institution, but only in those instances in
which such representation will not affect the lawyer's allegiance to
the legislature, and also subject to the provisions of the conflict
provisions of the Rules.
In Colorado, a statutory duty of confidentiality is owed by a
legislative lawyer to a legislator in connection with drafting that
legislator's bills and amendments. (2-3-505, Colorado Revised Statutes)
While the statutory duty of confidentiality overlaps with
attorney-client matters, its origins may be separate from the Rules of
Professional Conduct. The statutory requirement may be rooted in the
sound public policy of encouraging a member to ask that a bill be
prepared without fear of public revelation before the idea is fully
explored and developed.
The statutory duty of confidentiality is separate and distinct from the
duty of confidentiality that arises under Rule 1.13 when a legislator
communicates with a legislative lawyer. Under Rule 1.13, when a
legislator or other constituent of the legislative institution
communicates with a staff attorney in that person's organizational
capacity, the lawyer generally may not reveal the communication without
the person's consent. This does not mean, however, that constituents of
an organizational client are the clients of the lawyer. (See comment to
Rule 1.13) Nonetheless, Rule 1.13, lends itself to the day-to-day
activities that legislative lawyers perform for legislators that
require confidentiality and are in addition to bill drafting. Rule 1.13
allows the legislative lawyer to maintain the attorney-client
relationship with the institution and the confidentiality of a
legislator's communications to that lawyer.
By establishing this approach, the Office of Legislative Legal Services
hopes to address the ambiguity about staff-legislator relationships and
to provide a platform for further analysis and debate.
Note: This
discussion of the attorney-client relationship is an adaptation of an
article written by Douglas G. Brown and Dan L. Cartin, entitled "The
Attorney-Client Relationship and Legislative Lawyers: The State
Legislature as Organizational Client". The article was
printed in the Journal of the American Society of Legislative Clerks
and Secretaries, Volume 2, number 1, Spring 1996, and a copy is
available in the Office.
