May 1, 2016

Colorado Supreme Court Adopts Changes to Colorado Rules of Professional Conduct, Colorado Appellate Rules

The Colorado Supreme Court adopted Rule Change 2016(04), 2016(05), and 2016(06) last week, approving changes to the Colorado Rules of Professional Conduct and the Colorado Appellate Rules.

Rule Change 2016(04), adopted and effective April 6, 2016, enacts substantial changes to the Colorado Rules of Professional Conduct. Many of the changes were to the Comments to the Rules, and language was added to many comments about lawyers contracting outside their own firms to provide legal assistance to the client. Additionally, a new model pro bono policy was added to the Comment to Rule 6.1. The changes are extensive; a redline and clean version is available here.

Rule Change 2016(05) amended Rules 35, 40, 41, 41.1, and 42 of the Colorado Appellate Rules, adopted and effective April 7, 2016. The changes to the affected rules were extensive, and the Comments to those rules generally explain the changes. Rule 41.1 was deleted and incorporated into Rule 41. A redline and clean version of the rule change is available here.

Rule Change 2016(06), adopted and effective April 7, 2016, amended the Preamble to the Rules Governing the Practice of Law, Chapters 18 to 20 of the Colorado Rules of Civil Procedure. The Preamble addresses the Colorado Supreme Court’s exclusive jurisdiction and its ability to appoint directors of certain legal programs to assist the court. The Preamble also sets forth the court’s objectives in regulating the practice of law. A clean version of the newly adopted Preamble is available here.

For all of the Colorado Supreme Court’s adopted and proposed rule changes, click here.

New Rule 502 Added to Colorado Rules of Evidence

The Colorado Supreme Court issued Rule Change 2016(03), adopted and effective March 22, 2016, adding a new Rule 502 to the Colorado Rules of Evidence. Rule 502, “Attorney-Client Privilege and Work Product; Limitations on Waiver,” addresses disclosures of communications covered by the attorney-client privilege or work product doctrine. The rule is effective March 22, 2016. The rule is available below or on the State Judicial website.

Rule 502. Attorney-Client Privilege and
Work Product; Limitations on Waiver

The following provisions apply, in the circumstances set out, to disclosure of a communication or information covered by the attorney-client privilege or work-product protection.

(a) Disclosure Made in a Colorado Proceeding or to a Colorado Office or Agency; Scope of a Waiver. When the disclosure is made in a Colorado proceeding or to an office or agency of a Colorado state, county, or local government and waives the attorney-client privilege or work- product protection, the waiver extends to an undisclosed communication or information in a Colorado proceeding only if:
(1) the waiver is intentional;
(2) the disclosed and undisclosed communications or information concern the same subject matter; and
(3) they ought in fairness to be considered together.

(b) Inadvertent Disclosure. When made in a Colorado proceeding or to an office or agency of a Colorado state, county, or local government, the disclosure does not operate as a waiver in a Colorado proceeding if:
(1) the disclosure is inadvertent;
(2) the holder of the privilege or protection took reasonable steps to prevent disclosure; and
(3) the holder promptly took reasonable steps to rectify the error, including (if applicable) following C.R.C.P. 26(b)(5)(B).

(c) Disclosure Made in a Federal or other State Proceeding. When the disclosure is made in a proceeding in federal court or the court of another state and is not the subject of a court order concerning waiver, the disclosure does not operate as a waiver in a Colorado proceeding if the disclosure:
(1) would not be a waiver under this rule if it had been made in a Colorado proceeding; or
(2) is not a waiver under the law governing the state or federal proceeding where the disclosure occurred.

(d) Controlling Effect of a Court Order. A Colorado court may order that the privilege or protection is not waived by disclosure connected with the litigation pending before the court – in which event the disclosure is also not a waiver in any other proceeding.

(e) Controlling Effect of a Party Agreement. An agreement on the effect of disclosure in a Colorado proceeding is binding only on the parties to the agreement, unless it is incorporated into a court order.

(f) Definitions. In this rule:
(1) “attorney-client privilege” means the protection that applicable law provides for confidential attorney-client communications; and
(2) “work-product protection” means the protection that applicable law provides for tangible material (or its intangible equivalent) prepared in anticipation of litigation or for trial.

For all of the Colorado Supreme Court’s adopted and proposed rule changes, click here.

Rule Change 2016(02) Amends Rules Governing Commissions on Judicial Performance

The Colorado Supreme Court issued Rule Change 2016(02), which amends the Rules Governing the Commissions on Judicial Performance, effective March 17, 2016. All but three of the 16 rules were amended; some of the changes were relatively minor and some were more involved. Rule 12, “Recommendations,” was amended drastically to delete some of the specific criteria regarding retention recommendations. Rule 14, “Confidentiality,” also had several changes, including the deletion of certain criteria for the release of confidential information. Some of the changes, however, only affected the order of the wording.

A redline of the changes is available here. For all of the Colorado Supreme Court’s adopted and proposed rule changes, click here.

 

Colorado Rules of Civil Procedure Amended in Rule Change 2016(01)

On Thursday, February 4, 2016, the Colorado Supreme Court posted Rule Change 2016(01), adopted January 29, 2016. The rule change affects several of the Colorado Rules of Civil Procedure, and there are various effective dates for the changes.

C.R.C.P. 10 was changed to specify that footnotes should be in 12 point font and motions should be double-spaced. The comment to § 1-12 of Rule 121 was changed to include oral discovery in its scope. Rule 121, § 1-15, was revised significantly, changing several of the specifications for word and page limits of motions and addressing when the court should rule on motions. The comment to § 1-15 was also changed to explain some of the revisions. The changes to Rule 10 and §§ 1-12 and 1-15 of Rule 121 apply to motions filed on or after April 1, 2016.

C.R.C.P. 23, “Class Actions,” was amended by the addition of a new subsection (g), dealing with residual funds left after class action settlements. The changes to Rule 23 are effective for all class settlements approved by the court on or after July 1, 2016.

Rules 103 and 403 dealing with garnishments in district and county court were amended to provide that for pro se judgment creditors, indebtedness must be paid into the registry of the court, whereas judgment creditors represented by attorneys and collection agencies may receive funds directly. The Writ of Garnishment form was amended accordingly. These changes are effective March 1, 2016.

The amendment to Rule 359, “New Trials; Amendment of Judgments,” changed the deadline for appeal from 21 days to 14 days. The change is effective April 1, 2016.

Finally, Form 35.1, “Mandatory Disclosure,” was changed significantly. Most of the changes clarified required disclosures when a decree has been filed, specifying that only documents filed or prepared since the entry of the decree need be disclosed. These changes are effective April 1, 2016.

For all of the Colorado Supreme Court’s adopted and proposed rule changes, click here.

Changes to 10th Circuit Local Rules and Federal Rules of Appellate Procedure Posted

The Tenth Circuit Court of Appeals has posted changes to its local rules and the Federal Rules of Appellate Procedure, which will take effect January 1, 2016. The changes to the Tenth Circuit Local Rules are outlined in a memo, which is available here. A redline of the changes to the Federal Rules of Appellate Procedure, including the corresponding Tenth Circuit Local Rules, is available here.

The Federal Rules of Civil Procedure are also changing, effective December 1, 2015. The most significant change in the new Rules is that the scope of discovery is changing, as outlined below:

Rule 26.   Duty to Disclose; General Provisions Governing Discovery

(b)    Discovery Scope and Limits.

(1)    Scope in General.  Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.  Information within this scope of discovery need not be admissible in evidence to be discoverable.— including the existence, description, nature, custody, condition, and location of any documents or other tangible things and the identity and location of persons who know of any discoverable matter. For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action. Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence. All discovery is subject to the limitations imposed by Rule 26(b)(2)(C).

A redline of the proposed changes to the Federal Rules of Civil Procedure is available here.

Colorado Appellate Rules and Colorado Rules of Criminal Procedure Amended by Colorado Supreme Court

On Tuesday, November 3, 2015, the Colorado Supreme Court issued Rule Change 2015(09) and Rule Change 2015(10). Rule Change 2015(09) amends Rules 36, 37, 38, and 39 of the Colorado Appellate Rules. Rule Change 2015(10) amends Rule 17 of the Colorado Rules of Criminal Procedure.

The changes to the Colorado Appellate Rules are extensive. Much of the text of Rule 36, “Entry and Service of Judgment,” was deleted, and the comment notes that the rule was amended for brevity and to conform to the current practice of the courts. The changes to Rule 37, “Interest on Judgments,” are relatively minor, changing syntax and clarifying instructions. Rule 38, “Sanctions,” was significantly amended, and a 2015 comment was added. The comment notes that prior subsections (b), (c), and (e) of the rule were deleted and the relevant portions thereof were added to subsection (a), and prior subsection (d) was renumbered. The comment further clarifies that the statement in former subsection (b) about the court dispensing with oral argument was deleted because it is always within the court’s discretion to dispense with oral argument. Rule 39, “Costs,” also underwent significant revisions and now contains a 2015 comment. The comment to Rule 39 notes that the rule was changed, in part, to be consistent with Federal Rule of Appellate Procedure 39, which governs costs. The comment further clarifies that the changes shift responsibility for taxing costs from the appellate courts to the trial courts, which reflects the current practice of the courts. The comment outlines specific numbering changes to Rule 39.

The changes to Crim. P. 17, “Subpoena,” are relatively minor, adding electronic signatures to acceptable methods of waiver of service.

For a redline of Rule Change 2015(09), click here. For a redline of Rule Change 2015(10), click here. For all of the Colorado Supreme Court’s adopted and proposed rule changes, click here.

Rule Change 2015(08) Amends Chapter 38, “Public Access to Information and Records”

On Friday, October 30, 2015, the Colorado Supreme Court announced Rule Change 2015(08), amending Chapter 38 of the Colorado Rules of Civil Procedure, “Public Access to Information and Records.” The changes amended the title of the rules from “Public Access to Records and Information” and added an extensive new Rule 2, “Public Access to Administrative Records of the Judicial Branch.” The rule follows the Colorado Open Records Act (CORA) but is not identical, and the introductory paragraph to Rule 2 states, “Many of the rule’s deviations from CORA reflect simple changes to language and streamlined organization of the rule for clarity and to better serve the public. Other, substantive deviations from CORA reflect the unique nature of the records and operations of the Judicial Branch. These changes are addressed in comments throughout the rule. The rule pertains only to administrative records and does not contemplate or control access to court records.” The previously numbered Rule 2 was renumbered as Rule 3 but suffered no other amendments.

For the text of the new rule, click here. For all of the Colorado Supreme Court’s adopted and proposed rule changes, click here.

Rule Change 2015(07) Amends Pro Hac Vice Rules

On Friday, September 11, 2015, the Colorado State Judicial Branch announced Rule Change 2015(07), effective September 9, 2015. The rule change affects C.R.C.P. 121, §§ 1-2 and 1-26, and Rule 305.5 of the Colorado Rules of County Court Civil Procedure. The changes are minor, generally changing references to out-of-state or foreign attorneys and reflecting that foreign attorneys may be admitted under Rules 205.3 or 205.5 of the Rules Governing Admission to the Bar (C.R.C.P. Chapter 18). For a redline of the changes, click here.

Colorado Appellate Rules Amended by Colorado Supreme Court

On June 25, 2015, the Colorado Supreme Court issued Rule Change 2015(06), amending the Colorado Appellate Rules, effective immediately. The changes are extensive.

The changes to Rule 28, “Briefs,” include changes to formatting requirements for briefs and the deletion of some subsections. Former subsection (h) from Rule 28 was expanded into new Rule 28.1, “Briefs in Cases Involving Cross-Appeals.” Rule 29, “Brief of an Amicus Curiae,” received new subsections regarding content and form of briefs and length. Rule 31, “Serving and Filing Briefs,” added a subsection regarding consequences for failure to file and deleted subsections about the number of copies to be served in the supreme court and court of appeals. Rule 32, “Form of Briefs and Appellate Documents,” was also substantially amended, including changes to the captioning requirements. Finally, Rule 34, “Oral Argument,” was amended to specify that oral argument may be allowed at the discretion of the court. The changes to Forms 6 and 6A include certifications that the briefs conform to word and page limits in Rule 28, and the changes to Forms 7 and 7A set forth example captions for use in appellate briefs.

A redline of Rule Change 2015(06) is available here.

Changes Announced to Colorado Rules of Civil Procedure and Colorado Rules of Criminal Procedure

Colorado Court SealOn Monday, June 1, 2015, the Colorado State Judicial Branch released Rule Change 2015(04) and Rule Change 2015(05). Rule Change 2015(04) amends Rule 32, “Sentence and Judgment,” of the Colorado Rules of Criminal Procedure. The changes are significant and amend many procedural aspects of sentencing. The changes were adopted and effective May 22, 2015.

Rule Change 2015(05) amends the Colorado Rules of Civil Procedure. The changes are extensive and mirror the changes to the Federal Rules of Civil Procedure. According to the new Comment to Rule 1, “The 2015 amendments are the next step in a wave of reform literally sweeping the nation. This reform movement aims to create a significant change in the existing culture of pretrial discovery with the goal of emphasizing and enforcing Rule 1’s mandate that discovery be administered to make litigation just, speedy, and inexpensive. One of the primary movers of this reform effort is a realization that the cost and delays of the existing litigation process is denying meaningful access to the judicial system for many people.” The rule change also added a new form, JDF 622, “Proposed Case Management Order.” The changes were adopted by the Colorado Supreme Court on May 28, 2015, and are effective July 1, 2015, for cases filed on or after July 1, 2015.

On Thursday, June 25, 2015, CLE will host a program to discuss the new rule changes and what they will mean for Colorado attorneys. Richard Holme, Hon. Thomas Kane, and Hon. Michael Berger will discuss the new rules and their significance. Don’t miss this important opportunity to learn about the requirements of the new Rules.

NEW Rules of Civil Procedure in Colorado: Effective July 1, 2015

To register for the live program, click here. To register for the webcast, click here. To register for the video replay on July 17, click here.

Can’t make the live program? Order the homestudy here — CDMP3Video OnDemand

Minor Change to Colo. R. Crim. P. 44 Announced

On Thursday, March 26, 2015, the Colorado Supreme Court announced Rule Change 2015(03), which amended Rule 44 of the Colorado Rules of Criminal Procedure. The change affects subsection (a) of the rule, and the only change was to update a cross-reference from C.R.C.P. 226 to C.R.C.P. 205.7. For a redline of the rule change, click here.

Rules from Chapters 18 and 20 of Colorado Rules for Civil Procedure Amended

On January 14, 2015, the Colorado Supreme Court adopted Rule Change 2015(02), amending Rules 205.3, 205.5, 205.6, 224, and 227 of Chapter 18 of the Colorado Rules of Civil Procedure, and amending Rules 251.1, 260.2, and 260.6 of Chapter 20 of the Colorado Rules of Civil Procedure.

The change to Rule 205.3, “Pro Hac Vice Authority Before State Courts — Out-of-State Attorney,” updated the reference in subparagraph (7) to Colo. RPC 1.15A through E. Rules 205.5, “Pro Hac Vice – Foreign Attorney,” and 205.6, “Practice Pending Admission,” were similarly updated to cite to Colo. RPC 1.15A through E. The updates to Rule 227 were also minor, changing the reference in subparagraph (2)(a)(4) to Colo. RPC 1.15B and updating citations in the Comment to the “Regstration Fee of Non-Attorney Judges” section of the rule.

In Rule 224, “Provision of Legal Services Following Determination of a Major Disaster,” subparagraphs (2) and (3) were amended to change citations from C.R.C.P. 220(1)(a) and (b) to C.R.C.P. 205.1(a) and (b), and from C.R.C.P. 220 to C.R.C.P. 205.1; citations in subparagraphs (5)(a) and (b) were updated from C.R.C.P. 221 and 221.1 to C.R.C.P. 205.3 and 205.4; and subparagraph (6) was amended to change the citation from C.R.C.P. 220(3) to 205.1(3) and add a citation to Colo. RPC 8.5.

Citations were also updated in Rules 251.1, 260.2, and 260.6. Rule 251.1, “Discipline and Disability; Policy — Jurisdiction,” was changed to reference Rules 204 and 205 instead of Rules 220, 221, and 222. Subsection (4) of Rule 260.2, “CLE Requirements,” was amended to clarify that the subsection was repealed and replaced by C.R.C.P. 203.2(6), 203.3(4), and 203.4(6). Citations in subsections (5)(a) and (6) of Rule 260.6, “Compliance,” were also amended, updating references from Rule 201.14 to Rules 203.2(6), 203.3(4), and 203.4(6).

Click here for the Colorado Supreme Court’s 2015 rules changes.