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TCL > December 2001 Issue > Proposed Amendments to the Colorado Rules of Civil Procedure Unauthorized Practice of Law Rule 228. Jurisdiction

December 2001       Vol. 30, No. 12       Page  197
From the Courts
Court Business

Proposed Amendments to the Colorado Rules of Civil Procedure Unauthorized Practice of Law Rule 228. Jurisdiction

Colorado Supreme Court Rules Committee

Hearing to be held January 31, 2002 at 3:00 p.m.

NOTICE OF PUBLIC HEARING

The Supreme Court will conduct a public hearing on a proposed amendment to the Colorado Rules of Civil Procedure suggested by the Supreme Court Unauthorized Practice of Law Committee, the MDP Task Force of the Colorado and Denver Bar Associations and the Ad Hoc Committee on the Unathorized Practice of Law. The proposed amendment will add to existing rule C.R.C.P. 228, in the Unauthorized Practice of Law Rules.

The public hearing will be held on Thursday, January 31, 2002, at 3:00 p.m. in the Colorado Supreme Court Courtroom, 2 E. 14th Ave., Denver, Colorado. An original and eight copies of written comments to the Court concerning the proposal should be submitted to: Mac V. Danford, Clerk of the Colorado Supreme Court, 2 E. 14th Avenue, Denver, Colorado 80203, no later than January 22, 2002. Persons wishing to participate in the hearing should so notify Mr. Danford no later than January 22, 2002.

Following are the Proposed Amendments to existing Rule 228. [Note: The underlined text indicates proposed additions.]

 

UNAUTHORIZED PRACTICE OF LAW RULES

Rule 228. Jurisdiction

(a) The Supreme Court of Colorado, in the exercise of its exclusive jurisdiction to define the practice of law and to prohibit the unauthorized practice of law within the State of Colorado, adopts the following rules, which shall govern proceedings concerning the unauthorized practice of law.

(b) The Supreme Court reserves the authority to review any determination made in the course of proceedings conducted pursuant to these rules, and to enter any order with respect thereto, including an order directing that further proceedings be conducted as provided by these rules.

(c) The unauthorized practice of law shall not include the practice of law by an attorney who is not licensed in Colorado, but who practices law in Colorado and who is licensed to practice law in any other jurisdiction in the United States, and who is a member of the bar and in good standing in all such courts and jurisdictions where he or she has been admitted, unless such person:

(1) has established domicile in Colorado (without applying for and receiving admission to the bar by waiver or examination within a reasonable period of time following the establishment of such domicile); or

(2) has established a place for the regular practice of law in Colorado from which such person holds him or herself out to the public as practicing Colorado law, or solicits or accepts Colorado clients.

(d) Attorneys or counselors at law not licensed in Colorado, who are licensed to practice law in any other jurisdiction in the United States, and who appear in any court of record or before any administrative hearing officer must also comply with Rules 221 and 221.1 respectively.

(e) Any attorney who engages in the practice of law as authorized by Rule 228 (c-d), or who practices law in violation of Rule 228 (c-d) shall be subject to the Colorado Rules of Professional Conduct and the Colorado Rules of Procedure regarding attorney discipline and disability proceedings as set forth in C.R.C.P. 251.1, et seq., and those remedies set forth in C.R.C.P. 234(a).

 

SYNOPSIS AND HYPOTHETICAL SITUATIONS

REGARDING PROPOSED RULE 228(c) – (e)

Synopsis.

The Colorado Supreme Court has the exclusive authority to define and regulate the practice of law in Colorado. This authority is not limited to those who subject themselves to the jurisdiction of the court by obtaining a license to practice law, but rather arises from the Colorado Constitution, which delegates exclusive authority to regulate the practice of law in the state to the Supreme Court. Thus, a rule that permits persons licensed and in good standing elsewhere to practice temporarily in Colorado would legitimize existing practice, and recognize and provide notice of the power and intent to discipline lawyers not domiciled in Colorado.

Hypothetical Situations:

  1. Lawyer not in good standing. A lawyer practices law in Colorado, is not licensed in Colorado, is licensed in another jurisdiction but is not in good standing in one of the jurisdictions or courts before which she or he is admitted.

    This lawyer is a nonlawyer engaged in UPL, and is subject to civil injunctive proceedings under Rule 234, just like a person who is not licensed in any jurisdiction who engages in UPL in Colorado.

    [The following hypotheticals illustrate the application of this Rule for lawyers who are not licensed in Colorado, and who are in good standing in all jurisdictions and courts in which they are admitted.]

  2. Out-of-state lawyer, out-of-state client. A lawyer comes to Colorado on behalf of an out-of-state client in connection with a lawsuit in another jurisdiction, to interview witnesses or collect documents or facts, or to attend and conduct depositions.

    This activity is authorized by Rule 228(c) regardless of how many visits take place and how long the matter lasts. This lawyer is subject to the Colorado Rules of Professional Conduct, and discipline pursuant to Rule 228(e).

  3. Out-of-state lawyer, Colorado state court or Colorado state administrative matter. A lawyer comes to Colorado on behalf of a client (the client may be in-state, or out-of-state client) in connection with a lawsuit in state court, or before a state administrative agency in Colorado, and appears, and handles the litigation.

    So long as this lawyer obtained pro hac vice status under Rule 221 or Rule 221.1, the activity is authorized, and this lawyer is subject to the Colorado Rules of Professional Conduct, and discipline pursuant to Rule 251.1(b) and Rule 228(d). Lawyers who appear in federal court are governed by D.C.Colo. L.R. 83.5(A).

  4. Out-of-state lawyer conducts alternative dispute resolution in Colorado. The client may be from Colorado, or from out-of-state. An out-of-state lawyer collects evidence, takes depositions, or conducts a mediation or arbitration as an advocate or as a mediator or arbitrator, all or in part in Colorado.

    This lawyer cannot obtain pro hac vice admission under Rule 221 or 221.1. This activity is authorized by Rule 228(c) regardless of how many visits take place and how long the matter lasts. This lawyer is subject to the Colorado Rules of Professional Conduct, and discipline pursuant to Rule 228(e).

  5. Out-of-state lawyer handles transaction in Colorado. An out-of-state lawyer, at the request of the client (the client may be from Colorado, or from out-of-state), visits Colorado, and negotiates and closes a purchase and sale contract (stock, real property, etc.).

    This activity is authorized by Rule 228(c) regardless of how many visits take place and how long the project lasts. This lawyer is subject to the Colorado Rules of Professional Conduct, and discipline pursuant to Rule 228(e).

  6. Colorado resident. A lawyer, domiciled outside of Colorado, has a second home in Colorado where the lawyer has a place to work, (which may or may not be thought of as a home office), and where the lawyer does legal work when staying in the Colorado home. The lawyer serves clients from the state of his or her domicile while in Colorado.

    This activity is authorized by Rule 228(c) regardless of how much time is spent practicing in the Colorado residence (so long as domicile is not established in Colorado). This lawyer is subject to the Colorado Rules of Professional Conduct, and discipline pursuant to Rule 228(e).

    If the lawyer meets in her or his Colorado residence with clients from out-of state on out-of-state matters, or matters pertaining to Colorado law, the activity is authorized under Rule 228(c), and the lawyer is subject to the Colorado Rules of Professional Conduct and discipline pursuant to Rule 228(e).

  7. Colorado temporary resident, practice includes Colorado law. A lawyer, domiciled outside of Colorado has a second home in Colorado where the lawyer has a place to work (which may or may not be thought of as a home office), and where the lawyer does legal work when staying in the Colorado home. In addition to handling matters for clients from his or her state of domicile while visiting Colorado, the lawyer takes on work for local persons he or she became acquainted with while in the Colorado community.

    The legal work for the Colorado client is UPL under Rule 228(c)(2) regardless of how infrequent the practice may be. This lawyer is subject to the Colorado Rules of Professional Conduct and discipline pursuant to Rule 228(e).

    If the lawyer were to post signage, issue business cards or advertising in Colorado, which in any way indicates the lawyer is available for consultation on Colorado law, the UPL status is exacerbated.

  8. Out-of-state lawyer, Colorado office. A lawyer domiciled outside of Colorado is associated with a law firm that has a Colorado office. The lawyer comes to the Colorado office to assist on a matter in Colorado, at the request of the Colorado client or the firm’s Colorado office.

    This activity is authorized by Rule 228(c) regardless of how much time is spent practicing in Colorado (so long as subparts (1) or (2) are not violated). This lawyer is subject to the Colorado Rules of Professional Conduct, and discipline pursuant to Rule 228(e).

  9. Out-of-state lawyer, Colorado office of multi-state firm. A lawyer domiciled outside of Colorado, works in an office outside of Colorado, and is associated with a law firm that has a Colorado office. The lawyer comes to the Colorado office to assist in developing the firm’s practice in a particular area of the law. The lawyer meets with potential clients, conducts marketing presentations, entertains the potential Colorado clients, and assists the Colorado lawyers in developing the relationship with the potential clients. One of the potential clients hires the firm with the expectation that the lawyer and others in the Colorado office will work on the client’s Colorado matter. The lawyer does not maintain regular or permanent office space in the firm’s Colorado office, and does not state that she or he works in the Colorado office. Rather, the lawyer makes it clear that she or he is based in the firm’s office where the lawyer is domiciled.

    This activity is authorized by Rule 228(c) regardless of how much time is spent practicing in Colorado. The lawyer does not violate Rule 228(b)(ii) because the lawyer does not regularly practice law from the Colorado office, and does not hold her or himself out as practicing from the office, rather, the lawyer clearly states to potential clients that the lawyer is based in the office in the state of domicile. This lawyer is subject to the Colorado Rules of Professional Conduct, and discipline pursuant to Rule 228(e).

    On the other hand, if the lawyer maintains an office in the Colorado office of the firm, and regularly practices there, Rule 228(c)(2) is implicated, and the lawyer should obtain admission to the Colorado Bar. This UPL would be exacerbated by the lawyer’s engaging in marketing activities based out of the Colorado office, or accepting new clients at the Colorado office.

  10. Out-of-state lawyer, Colorado office. A lawyer domiciled outside of Colorado, works in an office outside of Colorado, and has an office in Colorado as well.

    If, in the Colorado office, the lawyer works only on out-of-state (including foreign law matters) or federal matters, and does not solicit or accept new Colorado clients, or hold him or herself out to the public as practicing Colorado law from that office, the activity is authorized under Rule 228(c).

    If the lawyer established the office to handle matters of Colorado law for an existing Colorado client, and did nothing in the way of marketing or solicitation to obtain new Colorado clients from the Colorado office, then Rule 228(c)(2) is not violated.

    If the lawyer, notwithstanding a lack of marketing or promotion, nevertheless attracts new Colorado clients, the lawyer may not accept the new Colorado client in the Colorado office without violating Rule 228(b)(ii).

    This lawyer is subject to the Colorado Rules of Professional Conduct, and discipline pursuant to Rule 228(e).

  11. Colorado domicile, Colorado office, out-of-state practice. A lawyer licensed elsewhere, domiciled in Colorado, works in an office in Colorado, and serves only out-of-state clients in a specialized area of the law.

    This lawyer must become a member of the Colorado Bar, pursuant to Rule 228(c)(1). This lawyer is subject to the Colorado Rules of Professional Conduct, and discipline pursuant to Rule 228(e).

  12. Conflicting ethics rules. A lawyer, not licensed to practice in Colorado, but authorized to practice in Colorado pursuant to Rule 228, faces a dilemma resulting from inconsistent or conflicting ethics rules between Colorado, and the state of licensure. For example, there may be conflicting rules on advertising, fee-splitting, or contingent fees.

    These conflicts will be resolved pursuant to regular rules of conflicts of laws, as if the lawyer was licensed in both jurisdictions.

 

© 2001 The Colorado Lawyer and Colorado Bar Association. All Rights Reserved. Material from The Colorado Lawyer provided via this World Wide Web server is protected by the copyright laws of the United States and may not be reproduced in any way or medium without permission. This material also is subject to the disclaimers at http://www.cobar.org/tcl/disclaimer.cfm?year=2001.


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