August 21, 2017

Rules of Civil Procedure and Rules for Magistrates Amended in Rule Change 2017(06)

On May 25, 2017, the Colorado Supreme Court adopted Rule Change 2017(06), which amends Rule 52 of the Colorado Rules of Civil Procedure and Rules 5 and 6 of the Colorado Rules for Magistrates. The changes are effective July 1, 2017.

Rule 52 was amended to change the last sentence, which now provides that “Findings of fact and conclusions of law are unnecessary on decisions on motions under Rule 12 or 56 or any other motion except as provided in these rules or other law.” Previously, it read “Findings of fact and conclusions of law are unnecessary on decisions of motions under Rule 12 or 56 or any other motion except as provided in Rule 41(b).” A new 2017 comment explains the reason for the change:

The final sentence of the former version of the rule, “Findings of fact and conclusions of law are unnecessary on decisions of motions under Rule 12 or 56 or any other motion except as provided in Rule 41(b),” was replaced because of requirements for findings and conclusions in rules other than Rule 41(b) and in some statutes. Regardless, judges are encouraged to include in decisions on motions sufficient explanation that would be helpful to the parties and a reviewing court. Thus, even where findings and conclusions are not required, the better practice is to explain in a decision on any contested, written motion the court’s reasons for granting or denying the motion.

C.R.M. 5 was amended to add a subsection (g) and renumber the prior subsection (g) as (h). Subsection (g) reads as follows:

(g) For any proceeding in which a district court magistrate may perform a function only with consent under C.R.M. 6, the notice — which must be written except to the extent given orally to parties who are present in court — shall state that all parties must consent to the function being performed by the magistrate.

(1) If the notice is given in open court, then all parties who are present and do not then object shall be deemed to have consented to the function being performed by the magistrate.

(2) Any party who is not present when the notice is given and who fails to file a written objection within 7 days of the date of written notice shall be deemed to have consented.

C.R.M. 6(a)(1)(I) was amended by changing statutory references within the subsection and changing the Act cited from the Uniform Act for Out-of-State Parolee Supervision to the Interstate Compact for Adult Offender Supervision. Additionally, a new subsection (f) was added to C.R.M. 6, which reads, “A district court magistrate shall not perform any function for which consent is required under any provision of this Rule unless the oral or written notice complied with Rule 5(g).”

For a redline of Rule Change 2017(06), click here. For all of the Colorado Supreme Court’s adopted and proposed rule changes, click here.

Dissemination of Confidential Client Information Discouraged in Formal Ethics Opinion 130

The Colorado Bar Association Ethics Committee recently issued Formal Opinion 130, dated April 3, 2017. Formal Opinion 130 addresses the disclosure of confidential client information, including information that is publicly available, such as when the information has been on the news. The opinion concludes that dissemination of such information is prohibited by the Rules of Professional Conduct, and specifically states that there is no exception for information contained in the public record.

Formal Opinion 130 also addresses the use of information about former clients, concluding that such use may be allowed under the Rules when such information is “generally known.” The opinion advises attorneys to exercise caution when using information about former clients.

The opinion offers redaction and informed consent as reasonable measures to use for the dissemination of confidential client information, but cautions that merely redacting the client’s name is likely insufficient to comply with the Rules.

Finally, the opinion cautions against editing confidential client information in order to mislead or misrepresent positions. This would implicate Rule 8.4(c), which prohibits conduct involving dishonesty, fraud, deceit, or misrepresentation.

The opinion concludes, “In many situations, making information obtained in the course of representing a client public is helpful, either to other lawyers or to educate the public.  But client confidences must be respected.” Lawyers should use caution when disseminating confidential client information.

Formal Opinion 130 by cleincolorado on Scribd

Rules Governing Admission to the Bar Amended in Rule Change 2017(05)

On Monday, May 15, 2017, the Colorado Supreme Court released Rule Change 2017(05), amending Rules 203.2 and 203.4 of the Rules Governing Admission to the Bar. The changes to the two rules extend the time in which an applicant may take the mandatory professionalism course prior to admission from one year to 18 months. The amendment was adopted and effective May 11, 2017. A redline of the changes is available here. For all of the Colorado Supreme Court’s adopted and proposed rule changes, click here.

ABA Formal Ethics Opinion Issued Regarding Secured Communications of Client Information

On Thursday, May 11, 2017, the ABA Standing Committee on Ethics and Professional Responsibility released Formal Opinion 477, “Securing Communication of Protected Client Information.” The opinion discusses internet transmission of protected client information, concluding that:

A lawyer generally may transmit information relating to the representation of a client over the internet without violating the Model Rules of Professional Conduct where the lawyer has undertaken reasonable efforts to prevent inadvertent or unauthorized access. However, a lawyer may be required to take special security precautions to protect against the inadvertent or unauthorized disclosure of client information when required by an agreement with the client or by law, or when the nature of the information requires a higher degree of security.

Formal Opinion 477 is an update to the basic confidentiality requirements addressed in Formal Opinion 99-413. The opinion was issued in response to the 2012 amendments to the ABA Model Rules in which technological competency was enunciated. This opinion discusses cybersecurity and measures that lawyers should take to safeguard client information, electing to reject requirements for specific security measures in favor of a fact-specific approach to business security obligations.

The opinion offers guidance on what reasonable steps an attorney may undertake in response to a cybersecurity threat, including:

  1. Understand the nature of the threat;
  2. Understand how confidential client information is transmitted and where it is stored;
  3. Understand and use reasonable security measures;
  4. Determine how electronic communications about client matters should be protected;
  5. Label confidential client information;
  6. Train lawyers and nonlawyer assistants in technology and information security; and
  7. Conduct due diligence on vendors providing communication technology.

To read the entire opinion, click here.

James Craig Dolezal Appointed to Sedgwick County Court

On Monday, May 8, 2017, the Colorado State Judicial Branch announced the governor’s appointment of James Craig Dolezal to the Sedgwick County Court. Dolezal will fill a vacancy created by the resignation of Hon. Tera Neugebauer, effective May 1, 2017.

Dolezal is currently an enumerator with the National Agriculture Statistic Service and the State of Colorado Division of the National Association of States Department of Agriculture. He has also been a financial advisor for JCD Wealth Management Services and UBS Financial Services, staff executive for George S. May Co., operations manager for Larson Motors, and has held various other positions in banking and business ownership. He received his undergraduate degree from Colorado State University.

For more information about the appointment, click here.

Magistrate Priscilla Loew Appointed to District Court Bench in 17th Judicial District

On Wednesday, May 3, 2017, the Colorado State Judicial Branch announced the governor’s appointment of Priscilla Jeffrey Loew to the 17th Judicial District Court. Loew will fill a vacancy created by the retirement of Hon. John Popovich, effective May 31, 2017.

Loew is currently a magistrate in the 17th Judicial District, where she has been since 2016. Prior to her work as a magistrate, Loew was a Senior Deputy District Attorney in the 2nd Judicial District from 2008 to 2016, and a Deputy District Attorney in Weld County from 2006 to 2007. She also clerked for Hon. Larry Naves in the Denver District Court. Loew received her law degree from the University of Denver Sturm College of Law and her undergraduate degree from the University of Colorado.

For more information about the appointment, click here.

Tenth Circuit to Upgrade CM/ECF System

The Tenth Circuit Court of Appeals announced that it will upgrade its CM/ECF system to the Next Generation CM/ECF system (NextGen), beginning on Friday, May 12 at noon and finishing by Monday, May 15 at 7 a.m. CM/ECF will not be available during the upgrade. Frequently asked questions about the NextGen system are available here. There are also electronic learning modules available for the PACER NextGen; they are available here. For more information about the upgrade and NextGen, click here.

Colorado Rules of Judicial Discipline Amended in Rule Change 2017(03)

On Wednesday, April 26, 2017, the Colorado State Judicial Branch released Rule Change 2017(03), amending the Colorado Rules of Judicial Discipline. The rules were amended on April 20, 2017, and will become effective on July 1, 2017.

The rule changes were quite extensive. A redline is available here.  Several definitions were added to Rule 2, “Definitions,” and many other rules in Part A were changed, including Rule 4, “Jurisdiction and Powers,” Rule 5, “Grounds for Discipline,” Rule 6.5, “Confidentiality and Privilege,” and more. Part B was amended to change the title of the Part from “Preliminary Proceedings” to “Informal Proceedings,” and the rule changes in Part B were significant. There were minor changes to Part C, “Disability Proceedings.”

For a redline of Rule Change 2017(03), click here. For all of the Colorado Supreme Court’s adopted and proposed rule changes, click here.

Nominees Selected for Sedgwick County Court Vacancy

On Wednesday, April 19, 2017, the Colorado State Judicial Branch announced the selection of two nominees to fill a vacancy on the Sedgwick County Court. The vacancy will be created by the resignation of Hon. Tera N. Neugebauer, effective May 1, 2017.

The two nominees are James Dolezal of Julesburg and Belinda Obermier of Julesburg. James Dolezal is an Investment Advisor Representative at JCD Wealth Management. Belinda Obermier is at Cabela’s in Sydney, Nebraska.

Under the Colorado Constitution, the governor has 15 days in which to appoint one of the nominees to the vacancy. Comments regarding either of the nominees may be emailed to the governor at gov_judicialappointments@state.co.us. For more information about the candidates, click here.

Nominees Selected for 17th Judicial District Court Vacancy

On Monday, April 17, 2017, the Colorado State Judicial Branch announced the selection of three nominees for an upcoming vacancy on the 17th Judicial District Court. The vacancy will be created by the retirement of Hon. John Popovich, effective May 31, 2017. The three nominees are Sean Finn of Broomfield, Priscilla Loew of Broomfield, and Kyle Seedorf of Broomfield.

Sean Finn is a Chief Deputy District Attorney in Boulder County. Priscilla Loew is a Magistrate in Broomfield County. Kyle Seedorf is a partner at Taylor Anderson LLP, where he practices business, insurance, tort, and premises liability litigation.

The governor has 15 days from April 17 in which to appoint one of the nominees to the bench. Comments regarding any of the nominees may be sent to the governor at gov_judicialappointments@state.co.us. For more information about the nominees, click here.

Application Period Open for Delta County Court Vacancy

On Monday, April 10, 2017, the Colorado State Judicial Branch announced an upcoming vacancy on the Delta County Court in the Seventh Judicial District. The vacancy will occur on August 4, 2017, and is occasioned by the resignation of Hon. Sandra Miller.

Applications are now being accepted for the upcoming vacancy. Eligible applicants must be qualified electors of Delta County and must have graduated high school or attained the equivalent. Application forms are available on the State Judicial website or from the ex officio chair of the Seventh Judicial District Nominating Commission, Justice Nathan Coats. Applications must be received no later than 4 p.m. on May 15, 2017 to be considered, and anyone wishing to nominate another must do so no later than May 8, 2017.

For more information about the vacancy and application process, click here.

Chief Justice Directives Regarding Oaths of Office and Sensitive Records Amended

The Colorado State Judicial Branch released updates to two of the Colorado Supreme Court Chief Justice Directives.

Chief Justice 85-25, “Oaths of Office for Judges and Magistrates,” was amended effective April 7, 2017. The changes to CJD 85-25 amended outdated language, added language regarding magistrates, and specified that the of oaths of magistrates are on file with the district administrator.

CJD 16-03, “Retention, Transmission, and Viewing of Sensitive Records,” was also amended effective April 7, 2017. CJD 16-03 was amended to change “designation of record” to “certificate of filing of record” in § 2.01(b) in order to more accurately reflect the location in which the appeals clerks insert language in bold that tells the appellate court Sensitive Records exist in the trial record but are not being transmitted as part of the record.

Click here for CJD 85-25, click here for CJD 16-03, and click here for all the Colorado Supreme Court Chief Justice Directives.