July 20, 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.

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.

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.

Colorado Rules of Criminal Procedure Amended by Rule Change 2017(02)

On Wednesday, March 8, 2017, the Colorado State Judicial Branch announced Rule Change 2017(02), affecting the Colorado Rules of Criminal Procedure. The rule change amends Crim. P. 49.5 by changing the website for the court’s electronic filing system. The Comment to Rule 49.5 was also changed, and a 2017 comment was added as follows:

 [4] Effective November 1, 2016, the name of the court authorized service provider changed from the “Integrated Colorado Courts E-Filing System” to “Colorado Courts E-Filing” (www.jbits.courts.state.co.us/efiling/).

Rule Change 2017(02) was adopted and effective March 2, 2017. The full text of the rule change is available here. For all the Colorado Supreme Court’s adopted and proposed rule changes, click here.

Colorado Rules of Civil Procedure Amended in First Rule Change of 2017

On Monday, January 23, 2017, the Colorado State Judicial Branch announced Rule Change 2017(01), effective January 12, 2017. Rule Change 2017(01) amends several rules of the Colorado Rules of Civil Procedure. The changes to Rules 17, 40, 60, 122, 305.5, and 121 §§ 1-14, 1-19, 1-23, and 1-26, as well as the changes to JDF 1111, are effective immediately. The changes to Rules 33, 103, 403, Form 20, and forms accompanying 103 and 403, are effective March 1, 2017.

The changes to Rule 33 affect pattern interrogatories and responses. The changes are quite extensive. A comment was added to Rule 33 to explain

[1] Pattern interrogatories [Form 20, pursuant to C.R.C.P. 33(e)] have been modified to more appropriately conform to the 2015 amendments to C.R.C.P. 16, 26, and 33. A change to or deletion of a pre-2017 pattern interrogatory should not be construed as making that former interrogatory improper, but instead, only that the particular interrogatory is, as of the effective date of the 2017 rule change, modified as stated or no longer a “pattern interrogatory.”

[2] The change to C.R.C.P. 33(e) is made to conform to the holding of Leaffer v. Zarlengo, 44 P.3d 1072 (Colo. 2002).

Rules 103 and 403 were amended to conform dates to the “Rule of 7” and to provide clarification regarding garnishments. The changes to Rules 103 and 403 are substantially similar. Forms 26, 28, 29, 31, 32, and 33 were also amended. The jurat or Return of Service was removed from each form, and other changes were made to conform to the changes to Rules 103 and 403.

Rule 17 was amended to remove reference to “a married woman.” A citation was updated in Rule 41. Rule 60 was updated to conform to the “Rule of 7.” Section 1-14 of Rule 121 was amended to update the citation to the Servicemembers Civil Relief Act and update the date of the comment. A citation was also updated in Rule 121, § 1-19, and a date was added to the comment.

Rule 121, § 1-23 was amended to add a paragraph (7) regarding bonding over liens. The new paragraph reads:

7. Bonding over a Lien. If a money judgment has been made a lien upon real estate by the filing of a transcript of the judgment record by the judgment creditor, the lien shall be released upon the motion of the judgment debtor or other interested party if a bond for the money judgment has been approved and filed as provided in this section 1-23. The order of the court releasing the lien may be recorded with the clerk and recorder of the county where the property is located. Once the order is recorded, all proceedings by the judgment creditor to enforce the judgment lien shall be discontinued, unless a court orders otherwise.

The comment to § 1-23 was amended to add a date and paragraph numbering. The changes to § 1-26 of Rule 121 also add dates and numbers to the comment, and a new 2017 comment was added to § 1-26.

The amendments to Rule 305.5 also add dates and numbers to the comments, and a new 2017 comment was added regarding the name of the court-authorized e-filing service provider. Rule 122 was changed to update contact information requirements for appointed judges, and to remove language from the affirmation.

JDF 1111, the Sworn Financial Statement, was updated to remove language from the Certificate of Service regarding simultaneous filing of JDF 1104.

A redline of Rule Change 2017(01) is available here. For all the court’s adopted and proposed Rule Changes, click here.

Rule Change 2016(12) Released, Amending the Colorado Rules of Professional Conduct

On Thursday, December 1, 2016, the Colorado Supreme Court issued Rule Change 2016(12), amending the Comment to Rule 2.1 of the Colorado Rules of Professional Conduct. Comment [2] of Rule 2.1, “Advisor,” was changed by the addition of a sentence regarding allocations of parental responsibilities:

[2] Advice couched in narrow legal terms may be of little value to a client, especially where practical considerations, such as cost or effects on other people, are predominant. Purely technical legal advice, therefore, can sometimes be inadequate. In a matter involving the allocation of parental rights and responsibilities, a lawyer should consider advising the client that parental conflict can have a significant adverse effect on minor children. It is proper for a lawyer to refer to relevant moral and ethical considerations in giving advice. Although a lawyer is not a moral advisor as such, moral and ethical considerations impinge upon most legal questions and may decisively influence how the law will be applied.

For the full text of Rule Change 2016(12), click here. For all of the Colorado Supreme Court’s adopted and proposed rule changes, click here.

District of Colorado Local Rules Amended, Effective December 1, 2016

The U.S. District Court for the District of Colorado has adopted changes to its local rules, effective December 1, 2016. The changes include a new Rule 2.1, “Forms of Action,” and an entire section on Local Patent Rules.

New Rule 2.1 clarifies that a proceeding not defined as a civil action under F.R.C.P. 2 should be filed as a civil miscellaneous (“mc”) or registered judgment (“rj”) action only if included in the List of Miscellaneous Cases. Rule 5.3 was amended by the addition of a subparagraph (c) dealing with written discovery requests or responses. The subparagraph specifies that other than in prisoner cases or as otherwise ordered, discovery requests shall be submitted by email or in other non-paper form. There were several other minor changes to various rules.

Section III on the Local Patent Rules is a comprehensive section dealing with the handling of patent claims in the U.S. District Court. The local rules are to be cited as D.C.Colo.LPtR _. The rules are to be known as the Local Rules of Practice of the United States District Court for the District of Colorado – Patent Rules. The rules specify that the civil local rules apply except as inconsistent with the patent rules. Topics addressed in the local patent rules include scheduling conferences and orders, discovery and confidentiality, infringement, invalidity, declaratory judgment, reliance on counsel’s opinion, claim construction, final infringement and invalidity contentions, and word limits. The remaining sections were renumbered accordingly.

Comments about the local rules may be submitted to the Advisory Committee on the Local Rules via email. For more information about the local rule changes, click here. For a redline of the changes, click here.

Rule Change 2016(11) Adopted, Amending Colorado Rules of Professional Conduct

On Thursday, November 3, 2016, the Colorado Supreme Court adopted Rule Change 2016(11), affecting the Colorado Rules of Professional Conduct. The rules affected are Rule 1.15A, “General Duties of Lawyers Regarding Property of Clients and Third Parties,” Rule 1.15B, “Account Requirements,” and Rule 1.15D, “Required Records.”

A new comment [7] was added to Rule 1.15A to define “reasonable efforts” to find owners of property and explain that it is context-specific. The comment lists several potential scenarios and what would constitute “reasonable efforts” in those cases.

Rule 1.15B was changed by the addition of subsection (k), which also addresses procedures a lawyer should follow when he or she has unclaimed funds in his or her COLTAF account.

Rule 1.15D was changed by the addition of a new subsection (a)(1)(C), which specifies procedures for remitting unclaimed funds to COLTAF.

For a redline and clean version of the rule change, click here. For all of the Colorado Supreme Court’s adopted and proposed rule changes, click here.

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.