October 23, 2014

Notary Program Rules Amended by Secretary of State

On Tuesday, October 7, 2014, the Colorado Secretary of State gave notice of the permanent adoption of changes to the notary rules. The changes are extensive, including new requirements for exam-taking for new notaries and those subject to claims of misconduct; new guidelines for electronic notarization; requirements for notary trainers; and more. A redline of the changes is available here.


C.R.C.P. 26 and 121 Amended Regarding Privilege Claims in Discovery and Motions to Reconsider

The Colorado Supreme Court released Rule Change 2014(11) on Monday, September 22, 2014. Rule Change 2014(11) creates a new subparagraph (B) in C.R.C.P. 26(b)(5), which addresses claims of privilege for information inadvertently disclosed during discovery, as follows:

(B) If information produced in disclosures or discovery is subject to a claim of privilege or of protection as trial-preparation material, the party making the claim may notify any party that received the information of the claim and the basis for it. After being notified, a party must not review, use or disclose the information until the claim is resolved; must take reasonable steps to retrieve the information if the party disclosed it before being notified; and shall give notice to the party making the claim within 14 days if it contests the claim. If the claim is not contested within the 14-day period, or is timely contested but resolved in favor of the party claiming privilege or protection of trial-preparation material, then the receiving party must also promptly return, sequester, or destroy the specified information and any copies that the receiving party has. If the claim is contested, the party making the claim shall within 14 days after receiving such notice present the information to the court under seal for a determination of the claim, or the claim is waived. The producing party must preserve the information until the claim is resolved, and bears the burden of proving the basis of the claim and that the claim was not waived. All notices under this rule shall be in writing.

Rule Change 2014(11) changed C.R.C.P. 121, § 1-15, to add a new subparagraph 11:

11. Motions to Reconsider. Motions to reconsider interlocutory orders of the court, meaning motions to reconsider other than those governed by C.R.C.P. 59 or 60, are disfavored. A party moving to reconsider must show more than a disagreement with the court’s decision. Such a motion must allege a manifest error of fact or law that clearly mandates a different result or other circumstance resulting in manifest injustice. The motion shall be filed within 14 days from the date of the order, unless the party seeking reconsideration shows good cause for not filing within that time. Good cause for not filing within 14 days from the date of the order includes newly available material evidence and an intervening change in the governing legal standard. The court may deny the motion before receiving a responsive brief under paragraph 1(b) of this standard

The committee comment to Rule 121, § 1-15, was amended as well to clarify the limits of subparagraph 11.

Rule 411, “Appeals,” was amended to allow the clerk to certify records.

For the full text of the rule change, click here. For all of the Colorado Supreme Court’s rule changes, click here.

Water Court Rules 6 and 11 Amended by Colorado Supreme Court

On Tuesday, July 1, 2014, the Colorado Supreme Court issued Rule Change 2014(10), amending the Uniform Local Rules for All State Water Court Divisions. This rule change amended Rules 6 and 11 of the Water Court Rules.

Many of the changes to Rule 6, “Referral to Referee, Case Management, Rulings, and Decrees,” addressed the responsibilities of the division engineer. A Committee Comment was added to the rule also, to explain that the rule change clarified the role of the division engineer and to ensure that the division engineer’s participation is meaningful and significant.

Rule 11, “Pre-Trial Procedure, Case Management, Disclosure, and Simplification of Issues,” discusses discovery during meetings of experts. The timeline for filing pretrial motions was decreased from 91 days to 84 days. A Committee Comment was added to this rule as well, explaining the discovery provisions and the reason for shortening the timeline.

For a redline of the changes to Rules 6 and 11, click here.

Rules Governing Admission to the Bar Amended by Colorado Supreme Court

On Tuesday, July 1, 2014, the Colorado Supreme Court issued Rule Change 2014(09), amending the Rules Governing Admission to the Bar. The changes were significant, repealing and reenacting Rules 201 through 226.5. All of the rule changes are effective September 1, 2014, except the changes to Rule 203.2 regarding pro hac vice admissions. Rule 203.2 is effective July 1, 2014.

For a PDF of the new rules, click here.

Colorado Appellate Rules Amended by Colorado Supreme Court

On Wednesday, June 25, 2014, the Colorado State Judicial Branch announced Rule Change 2014(08), amending several of the Colorado Appellate Rules. The rule change was adopted June 23, 2014, effective immediately.

Most of the changes to the Colorado Appellate Rules were minor, including typographical corrections and changes to reflect current procedures regarding filing practices. Some changes amended the Rules to reflect Rule of 7 changes.

For the full text of the rule change, click here.

Colo. RPC 1.15 Concerning Fees and Trust Accounts Repealed and Reenacted as Five New Rules

On Wednesday, June 18, 2014, the Colorado Supreme Court released Rule Change 2014(07), which repealed Colo. RPC 1.15 and reenacted it as Colo. RPC 1.15A, 1.15B, 1.15C, 1.15D, and 1.15E. The rule change was signed on June 17, 2014 and is effective immediately.

Colo. RPC 1.15A, “General Duties of Lawyers Regarding Property of Clients and Third Parties,” sets forth rules regarding client property and accountings. Rule 1.15A mostly tracks the language of subsections (a) through (c) of former Rule 1.15, and adds that the provisions of 1.15B through 1.15E apply to all funds or property held or maintained by the lawyer.

Colo. RPC 1.15B, “Account Requirements,” makes significant changes to subsections (d) through (h) of former Rule 1.15. Rule 1.15B sets forth requirements for COLTAF and other accounts in which to maintain client funds, and specifies practical procedures for paying account fees and dispersing interest.

Colo. RPC 1.15C, “Use of Trust Accounts,” rearranges the management provisions previously contained in 1.15(i) and increases the rule’s readability.

Colo. RPC 1.15D, “Required Records,” establishes recordkeeping requirements for client property. Some of the provisions from former 1.15(d) through (h) regarding recordkeeping procedures were moved to Rule 1.15D, and the language of former 1.15(j) through (m) is also incorporated where appropriate.

Colo. 1.15E, “Approved Institutions,” lists requirements for financial institutions housing trust accounts and defines acceptable forms of accounts. Rule 1.15E is expanded from former 1.15(e)(3), and many provisions were added regarding the financial institutions.

For the full text of new Rules 1.15A through 1.15E, click here. For all of the Colorado Supreme Court’s rules changes, click here.

C.R.C.P. 42.1, Consolidated Multidistrict Litigation Rule, Changed by Supreme Court

On Monday, May 5, 2014, the Colorado Supreme Court issued Rule Change 2014(06), amending Rule 42.1 of the Colorado Rules of Civil Procedure. Rule 42.1, “Consolidated Multidistrict Litigation,” was amended to clarify the procedures for filing original procedures in consolidated matters, as shown by this redline:

(k)(2) Original pleadings regarding consolidated matters shall thereafter be filed with the clerk of the transferee court and copies filed with the clerk of the transferor court.

For a complete list of the Colorado Supreme Court’s rule changes, click here.

Comment [14] Added to Colo. RPC 1.2 Regarding Advising Marijuana Businesses

The Colorado Supreme Court adopted Rule Change 2014(05) on Monday, March 24, 2014, effective immediately. The rule change amends the Colorado Rules of Professional Conduct by adding Comment [14] to Rule 1.2 to read:

A lawyer may counsel a client regarding the validity, scope, and meaning of Colorado constitution article XVIII, secs. 14 & 16. and may assist a client in conduct that the lawyer reasonably believes is permitted by these constitutional provisions and the statutes, regulations, orders, and other state or local provisions implementing them. ln these circumstances, the lawyer shall also advise the client regarding related federal law and policy.

Justice Coats and Justice Eid would not adopt Comment [14].

Colorado Rules Governing Commissions on Judicial Performance Amended Along with CJD 85-22

The Colorado Supreme Court approved Rule Change 2014(04), amending the Colorado Rules Governing the Commissions on Judicial Performance. The changes were to Rule 10, “Trial Judge Evaluations”; Rule 11, “Appellate Judge and Justice Evaluations”; and Rule 13, “Narratives.” The changes were extensive, including changing language and updating procedures for judicial evaluation. To see a redline of the changes, click here.

Chief Justice Directive 85-22 was also amended by the Colorado Supreme Court. The directive was amended in order to list the current interest rate and to update the interest rate that appears in the CJD. The interest rate on judgments that are appealed is 3 percent for 2014.

Colorado Rule of Evidence 803(10) Amended to Conform to Changes to FRE 803(10)

On Wednesday, February 26, 2014, the Colorado State Judicial Branch announced Rule Change 2014(03), amending subsection 10 of Colorado Rule of Evidence 803.

CRE 803 lists hearsay exceptions where the availability of the declarant is immaterial. Subsection 10 addresses the absence of a public record. The changes to Subsection 10 are substantial (see redline of changes below) and the committee comment was also revised to reflect that the changes were made to conform CRE 803 to FRE 803, which was amended in December 2013.

(10) Absence of a Ppublic Rrecordor entryTestimony - or a certification under Rule 902 - that a diligent search failed to disclose a public record or statement if:

(A) the testimony or certification is admitted to prove that

(i)     the record or statement does not exist; or

(ii)     a matter did not occur or exist, if a public office regularly kept a record or statement for a matter of that kind; and

(B) in a criminal case, a prosecutor who intends to offer a certification provides written notice of that intent at least 14 days before trial, and the defendant does not object in writing within 7 days of receiving the notice unless the court sets a different time for the notice or the objection.

To prove the absence of a record, report, statement, or data compilation, in any form, or the non-occurrence or non-existence of a matter of which a record, report, statement, or data compilation, in any form, was regularly made and preserved by a public office or agency, evidence in the form of a certification in accordance with Rule 902, or testimony, that diligent search failed to disclose the record, report, statement, or data compilation, or entry.

(Federal Rule Identical.)  

The changes to CRE 803(10) are effective February 18, 2014.

For a complete list of the Colorado Supreme Court’s rules changes, click here.

First Rule Changes of 2014 Amend Colorado Rules of Criminal Procedure and Rules Governing Admission to the Bar

The Colorado State Judicial Branch released the first rule changes of 2014, amending Crim. P. 37, “Appeals from County Court,” and Rule 227, “Registration Fee,” of Chapter 18 of the Colorado Rules of Civil Procedure, “Rules Governing Admission to the Bar.”

Rule Change 2014(02) amends the Rules Governing Admission to the Bar. The change to Rule 227 specifies that $25 of attorney registration fees are to go to the Attorneys’ Fund for Client Protection and the remainder will go to defray the costs of the Office of Attorney Regulation Counsel. Previously, $40 was allocated to the Attorneys’ Fund for Client Protection. This rule was adopted and effective January 16, 2014.

Rule Change 2014(01) makes several changes to subsection (c) of Rule 37 of the Colorado Rules of Criminal Procedure:

(c) Contents of Record on Appeal. Upon the filing of a notice of appeal and upon the posting of such ANY advance costs by the appellant, as may be ARE required for the preparation of a record, unless the appellant is granted leave to proceed as an indigent, the clerk of the county court shall prepare and issue as soon as may be possible a record of the proceedings in the county court, including the summons and complaint or warrant, the separate complaint if any has been issued, and the judgment. The record shall also include a transcription or a joint stipulation of such part of the actual evidence and other proceedings as the parties may designate. If the proceedings have been electronically recorded ELECTRONICALLY, the transcription of designated evidence and proceedings shall be prepared in the office of the clerk of the court, either by him OR HER or under his OR HER supervision, within 42 days after judgment THE FILING OF THE NQTICE OF APPEAL or within such additional time as may be granted by the county court. The clerk shall notify in writing the opposing parties of the completion of the record, and such parties shall have 14 days within which to file objections. If none are received, the record shall be certified forthwith by the judge clerk. If objections are made, the parties shall be called for hearing and the objections settled by the county judge and the record then certified.

For a list of the supreme court’s rule changes, click here.

Changes to Colorado Rules of Civil Procedure, Rules for Magistrates, and County Court Civil Procedure Announced

On Wednesday, January 8, 2014, the Colorado State Judicial Branch announced the final rules changes of 2013, Rule Change 2013(17) and Rule Change 2013(18), amended and adopted by the supreme court on December 31, 2013.

Rule Change 2013(17) amends § 1-26 of C.R.C.P. 121 and Rule 305.5 of the Colorado Rules of County Court Civil Procedure. The changes outline amended procedures for use of the state’s electronic filing system, ICCES, by pro hac vice or other out-of-state attorneys. The Comments to these rules have also been amended to reflect that ICCES is now the official e-filing system for Colorado.

Rule Change 2013(18) amends § 1-15 of C.R.C.P. 121 and Rule 7 of the Colorado Rules for Magistrates. The changes to C.R.C.P. 121 amend the time in which affidavits may be filed in support of motions. The changes to C.R.M. 7 specify that an order that effectively ends a case shall be subject to de novo review.

For the complete list of the Colorado Supreme Court’s rules changes, click here.