October 19, 2017

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.

Comment Period Open for Proposed Changes to Colorado Appellate Rules

The Colorado Supreme Court is soliciting comments regarding proposed changes to the Colorado Appellate Rules. The changes affect Rule 3.4, “Appeals from Proceedings in Dependency and Neglect,” and the corresponding forms, JDF 545 through 549. The proposed changes to Rule 3.4 include minor changes, such as changing the word “record” to “transcript” in some places, and major changes, including the court’s continued jurisdiction over the case, composition of the record on appeal, inclusion of information about the Indian Child Welfare Act, and more. A redline of the proposed changes is available here.

Comments regarding the proposed changes may be submitted in writing to Christopher Ryan, Clerk of the Colorado Supreme Court, via email or via U.S. mail to 2 E. 14th Ave., Denver, CO 80203. Comments must be received no later than 5 p.m. on April 6, 2016. Comments will be posted on the State Judicial website after the comment period has closed.

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

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.

Colorado Court of Appeals: Pro Se Plaintiff Practiced Law by Attempting to Litigate Minor Child’s Claims

The Colorado Court of Appeals issued its opinion in Cikraji v. Snowberger on Thursday, May 7, 2015.

Summary Judgment—Colorado Governmental Immunity Act—Unauthorized Practice of Law.

Plaintiff’s son C.C. was a member of the Durango High School cross-country team, and he agreed to be bound by the Colorado High School Activities Association (CHSAA) bylaws. Plaintiff requested permission to remove C.C. from school to go on a trip to Ohio. While in Ohio, C.C. competed in the U.S. Air Force 10k and won. After the trip, defendant Perrin (DHS’s athletic director) informed plaintiff that C.C. would be disciplined for violating the CHSAA Outside Competition Rule because C.C. had not received permission to compete in the 10k. C.C. was suspended from a single cross-country meet.

Plaintiff e-mailed various defendants about the suspension. He also attended a Durango Board of Education meeting, where he argued that the behavior of defendant McMillian (C.C.’s cross-country coach) was bullying.

Plaintiff thereafter filed a pro se complaint alleging that defendants violated his and C.C.’s “rights.” Defendants filed motions to dismiss and plaintiff filed a motion for summary judgment. The district court denied plaintiff’s requested summary judgment and entered judgment in favor of defendants. In pertinent part, the court concluded that plaintiff failed to establish that he followed the notice provisions of the Colorado Governmental Immunity Act (CGIA), and therefore, the court was without jurisdiction to consider his claims.

The Court of Appeals noted many deficiencies in plaintiff’s pro se brief, but nonetheless considered his arguments. Plaintiff was the only named plaintiff, but his claims were almost exclusively belonging to his son and, by representing and acting on his son’s behalf, he was engaging in the practice of law. Because plaintiff is not a licensed attorney in Colorado, he cannot represent his son in court proceedings. The Court dismissed those portions of plaintiff’s appeal representing his son with prejudice. To the extent plaintiff’s claims addressed injuries to himself, the Court affirmed the summary judgment in favor of defendants, because plaintiff failed to comply with the jurisdictional notice requirements of the CGIA. Those portions of the appeal plaintiff filed on behalf of C.C were dismissed with prejudice, and the judgment was otherwise affirmed.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Appellate Rules Amended in First Rule Change of 2015

On Wednesday, January 7, 2015, the Colorado Supreme Court announced Rule Change 2015(01), amending the Colorado Appellate Rules. Three rules were affected by this rule change: Rule 8, “Stay or Injunction Pending Appeal,” Rule 27, “Motions,” and Rule 33, “Prehearing Conference.”

The changes to Rule 8 are extensive, and include subdivision of various subparagraphs into further subparagraphs, many changes of procedural language, and changing “shall” to “must” in many instances. The changes to Rule 27 are similarly extensive, again adding subparagraphs and changing significant amounts of the language. Rule 33 was repealed in its entirety.

A redline of these changes is available here:

2015(01) redline

The Colorado Supreme Court adopted and proposed rule change page is available here.

Colorado Appellate Rules Amended by Colorado Supreme Court

On October 17, 2014, the Colorado Supreme Court issued Rule Change 2014(13), amending the Colorado Appellate Rules. Four rules were amended: C.A.R. 3, “Appeal as of Right – How Taken”; C.A.R. 25, “Filing and Service”; C.A.R. 32, “Form of Briefs and Appellate Documents”; and C.A.R. 57, “Briefs – In General.”

In general, these rules were amended to change “shall” to “must” where applicable and change “papers” to “documents.” Several of the comments were removed from subsections of Rule 3, as well as references to specific caption requirements and requirements regarding transcripts. Description of magistrate review requirements was added to Rule 3.

Many of the changes to Rule 25 address the availability of electronic filing and specifications related to electronic files. Inmate filing procedures were also clarified. Rule 32 was amended to add information to the caption regarding the lower court. The sample captions in Rule 32 were also changed, and much language was deleted from the comment. In Rule 57, some dates were changed in accordance with the Rule of Seven. Specifications that briefs comply with the content and length requirements of Rule 28 and the form and service requirements of Rule 32 were added to Rule 57 as well.

For a redline of these changes to the Colorado Appellate Rules, click here. For all of the Colorado Supreme Court’s rule changes, 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.

Colorado Supreme Court: Record on Appeal Did Not Satisfy C.A.R. 10(b); Appeal Dismissed With Prejudice

The Colorado Supreme Court issued its opinion in Northstar Project Management, Inc. v. DLR Group, Inc.  on Monday, February 11, 2013.

CAR 10(b)—Designation of Appellate Record.

The Supreme Court held that the court of appeals erred when it held that the record designated by DLR Group, Inc. (DLR) on appeal satisfied CAR 10(b). The court of appeals did not have the information necessary to determine whether the evidence sufficiently supported the jury’s verdict in favor of Northstar Project Management, Inc. The judgment of the court of appeals was reversed and the case was remanded for dismissal of DLR’s appeal with prejudice pursuant to CAR 38(e).

Summary and full case available here.

Attorney’s Limited Appearance on Behalf of Pro Se Party Allowed by Rule Change to C.A.R. 5

On Thursday, October 11, 2012, the Colorado Supreme Court issued Rule Change 2012(15), containing an amendment to Rule 5 of the Colorado Appellate Rules. The amendment adds subsections (e) and (f) to the rule, as well as a comment to explain the purpose of the new subsections.

The purpose of C.A.R. 5(e) is to establish a procedure similar to that set forth in Colorado Rule of Civil Procedure 121 Section 1-1(5). This procedure provides assurance that an attorney who makes a limited appearance for a pro se party in a specified appellate case proceeding(s), at the request of and with the consent of the pro se party, can withdraw from the case upon filing a notice of completion of the limited appearance, without leave of court. The purpose of C.A.R. 5(f) is to make clear that when an attorney appears for a party, whom he or she has not previously represented, in an appellate court and the proceedings in that court have concluded, the attorney is not obligated to represent the party in any other proceeding on remand or in any review of the appellate court’s decision by any other court. Nothing in this provision would prevent the attorney from entering a limited or general appearance on behalf of the party in another court (for example, on a writ of certiorari to the supreme court), if agreed to by the attorney and the party.

The amendments were adopted October 11, 2012, effective immediately. Click here to review the red line changes to these appellate rules, outlined as Rule Change 2012(15).

“Rule of Seven” Comment Added to Four Colorado Procedure Rules

On June 27, 2012, the Colorado Supreme Court announced four amendments to various Colorado procedure rules regarding the “rule of seven” for procedural time calculations. Colorado Civil Procedure Rules 6 and 306, Criminal Procedure Rule 45, and Colorado Appellate Rule 26 were all amended with the following Comment:

AFTER THE PARTICULAR EFFECTIVE DATE, TIME COMPUTATION IN MOST SITUATIONS IS INTENDED TO INCORPORATE THE RULE OF SEVEN. UNDER THE RULE OF SEVEN, A DAY IS A DAY, AND BECAUSE CALENDARS ARE DIVIDED INTO 7-DAY WEEK INTERVALS, GROUPINGS OF DAYS ARE IN 7-DAY OR MULTIPLES OF 7-DAY INTERVALS. GROUPINGS OF LESS THAN 7 DAYS HAVE BEEN LEFT AS THEY WERE BECAUSE SUCH SMALL NUMBERS DO NOT INTERFERE WITH THE UNDERLYING CONCEPT. DETAILS OF THE RULE OF SEVEN REFORM ARE SET FORTH IN AN ARTICLE BY RICHARD P. HOLME, 41 COLO. LAWYER, VOL. 1, P 33 (JANUARY 2012).

TIME COMPUTATION IS SOMETIMES “FORWARD,” MEANING STARTING THE COUNT AT A PARTICULAR STATED EVENT [SUCH AS DATE OF FILING] AND COUNTING FORWARD TO THE DEADLINE DATE. COUNTING “BACKWARD” MEANS COUNTING BACKWARD FROM THE EVENT TO REACH THE DEADLINE DATE [SUCH AS A STATED NUMBER OF DAYS BEING ALLOWED BEFORE THE COMMENCEMENT OF TRIAL]. IN DETERMINING THE EFFECTIVE DATE OF THE RULE OF SEVEN TIME COMPUTATION/TIME INTERVAL AMENDMENTS HAVING A STATUTORY BASIS, SAID AMENDMENTS TAKE EFFECT ON JULY 1, 2012 AND REGARDLESS OF WHETHER TIME INTERVALS ARE COUNTED FORWARD OR BACKWARD, BOTH THE TIME COMPUTATION START DATE AND DEADLINE DATE MUST BE AFTER JUNE 30, 2012. FURTHER, THE TIME COMPUTATION/TIME INTERVAL AMENDMENTS DO NOT APPLY TO MODIFY THE SETTINGS OF ANY DATES OR TIME INTERVALS SET BY AN ORDER OF A COURT ENTERED BEFORE JULY 1, 2012.

These amendments were adopted on June 21, 2012, and are effective July 1.

Click here to review the red line changes to these rules, outlined as Rule Change 2012(08).

Colorado Supreme Court: Defendant Not in Custody When Statements Made; No Miranda Warnings Required

The Colorado Supreme Court issued its opinion in People v. Figueroa-Ortega on June 25, 2012.

Miranda Warnings—Custodial Interrogation.

The People brought an interlocutory appeal pursuant to CRS § 16-12-102(2) and CAR 4.1 challenging the district court’s suppression of statements made by defendant to a police detective. The district court found that the statements in question were the product of custodial interrogation, without the benefit of Miranda warnings. The Supreme Court reversed the suppression order of the district court, holding that because defendant was not in custody at the time he made the statements in question, no Miranda warnings were required.

Summary and full case available here.