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 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, C.R.S.) 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.